State Ex Rel. Moore v. O'Bannon ( 1938 )

I find no objection to the rules of law announced in the syllabus of the majority opinion, but, as I view it, the rules of law therein stated are not applicable to the facts in the instant case. Under the facts before us, I cannot concur in the conclusion arrived at in the majority opinion. The question is whether the plaintiff complied with the law in making service by publication upon the "unknown heirs" of Amster Sugar, deceased, a full-blood Creek Indian.

It is admitted that plaintiff prosecuted his action to determine heirship and to quiet title to land under sections 1386-1390, O. S. 1931, 84 Okla. St. Ann. §§ 257-261, and named as defendants "the heirs, executors, administrators, devisees, trustees and assigns, immediate and remote," of the deceased.

In the body of the petition and in the body of the publication notice, plaintiff included as additional defendants the "unknown heirs" of the deceased. The term "unknown heirs" means all kinds of heirs. 21 R. C. L. 1290. "Unknown heirs" may be made one of several defendants, and, when so designated, service must be complete as to each, and each defendant must be served in the manner prescribed by law. 50 C. J. 485; 20 R. C. L. 664.

In order for the court to acquire jurisdiction so that it may render a judgment that will be binding upon unknown persons, joined as defendants, the provisions of the statute must be strictly followed, since it is only by virtue of the statute that any judgment can be entered at all. Unknown Heirs of Whitney v. Kimball, 4 Ind. 546, 58 Am. Dec. 638, and note, 87 Am. St. Rep. 364. Section 183, O. S. 1931, 12 Okla. St. Ann. § 170, provides the manner of obtaining service by publication upon nonresident defendants and unknown heirs made parties defendant in an action which relates to, or the subject matter of which is, real estate. Section 184, O. S. 1931, 12 Okla. St. Ann. § 171, provides that:

"Before service can be made by publication, an affidavit must be filed stating that the plaintiff, with due diligence, is unable to make service of the summons within the state upon the defendant to be served by publication, and showing that the case is one of those mentioned in the preceding section."

In the present case this statute was not complied with. Plaintiff contends, and the majority opinion holds, that this was unnecessary under the provisions of sections 1386-1390, supra. The error in this contention lies in the fact that nowhere are unknown heirs mentioned as parties defendant in the sections relied upon. Surely this law designated as a special act in the majority opinion does not supersede a general law providing the method of serving process upon a class of defendants not mentioned in the so-called special act. Where one of several defendants has not been served, and has neither voluntarily appeared nor authorized an attorney to appear for him, a judgment rendered against him is void and a nullity. Hatfield v. Lewis, 110 Okla. 98, 236 P. 611.

As I view it, the majority opinion is wrong in any case under the facts presented here. To me the rule announced in the majority opinion is particularly objectionable and dangerous when dealing with lands of a full-blood member of the Five Civilized Tribes of Indians. In Naharkey v. Sand Springs Home,177 Okla. 371, 59 P.2d 289, 292, we recognize the force of a governmental policy as applied to collateral attack. Therein we said:

"Perhaps the true basis for considering extrinsic facts, not appearing on the face of the judgment roll in determining the validity of final judgments affecting the lands of Indians not alienable by reason of restrictions, is that such restrictions are imposed by the federal laws defining the public policy of the nation with respect to and for the protection of a class of individuals, regarded as wards of the government, and because a recognition of the validity of such judgments would make the courts an instrumentality through which the end intended to be accomplished would be defeated."

The Act of Congress June 14, 1918, 40 Stat. 606, § 1, 25 U.S.C.A. § 375, providing for the determination of heirship of allottees of the Five Civilized Tribes, authorizes service by publication, "the service to be in accordance with the method of serving nonresident defendants in civil suits in the district courts of said state." In Homer v. Lester,95 Okla. 284, 219 P. 392, we held that the Act of Congress June 14, 1918, made no provision for service of any process by publication or otherwise on any one other than "unknown heirs."

In re Jessie's Heirs, D.C., 259 F. 694, 706, in an opinion subsequent to the enactment of sections 1386-1390, supra, Judge R. L. Williams, Federal Judge for the Eastern District of Oklahoma, held that sections 183, 184, O. S. 1931, 12 Okla. St. Ann. §§ 170, 171, supra, prescribed the manner of service in case of "unknown heirs" of allotted Indian lands under the Act of Congress June 14, 1918, in the proceedings in the district or superior courts, saying:

"See chapter 145, Session Laws of Oklahoma, 1919, for manner of service prescribed in case of 'unknown heirs.' "

Service by publication is permissible only where the statute authorizes it and a strict compliance with the requisites of the statute is demanded. 21 R. C. L. 1283. In Griffin v. Galbraith, 114 Okla. 208, 247 P. 339, 342 we said: "To hold that a defendant could be deprived of his property without service, without his day in court, would be depriving him of property without due process of law," is violative of section 7, art. 2, of the Constitution.

I can conceive of no legitimate reason for not complying with what I consider a plain provision of the law in cases of the nature involved in the present action. I can see where rank injustice may result from the noncompliance with the law. The right to protect one's property is second only to the protection of one's person, and the rule announced in the majority opinion makes it possible to divest one of his title without his knowledge by reading something into the law never intended either by the Legislature or Congress.

The statutes herein discussed were both adopted at the same session of the Legislature. One specifically mentions "unknown heirs" as parties defendant and provides the manner of service of process; the other, designated in the majority opinion as a special act, makes no mention of unknown heirs or unknown persons as parties defendant and makes no provision for service of process upon such defendants.

These acts should be construed together. O'Brien Packing Co. v. Martin, 172 Okla. 157, 44 P.2d 72; State ex rel. Power et al. v. Wenner, 121 Okla. 190, 249 P. 408; Ford et al. v. Walter et al., 163 Okla. 31, 20 P.2d 884.

Being mindful of the seriousness of the question presented and the far-reaching effect of the majority opinion and for the reasons expressed herein, I conclude that the writ should be denied. Accordingly, I dissent.