Barton v. Alpine Investments, Inc. , 596 P.2d 532 ( 1979 )

DOOLIN, Justice:

This lawsuit involves a quarter section of land in Roger Mills County, Oklahoma. In the year 1926, the Taylors (owner) conveyed all the mineral rights under this property to Union Royalty Company (Union). In 1931 Union conveyed forty (40) of these 160 mineral acres to Pan Mutual Royalties. Ownership of the remaining 120 mineral acres is the subject of this dispute.

Deraignment of title to the minerals takes two separate directions. The first, through which plaintiff claims title, is as follows. In 1947, owner filed an action in Roger Mills County District Court seeking to reform the 1926 deed to Union from an absolute alienation to a twenty year term and to quiet her title in the minerals. Service by publication was had on an affidavit filed pursuant to 12 O.S.1941 § 171 and that place of business was unknown pursuant to § 172. Owner took a default judgment against Union, the grantee under the deed. Union received no notice of the action or of the judgment rendered. Soon thereafter owner conveyed the entire quarter section to plaintiff’s predecessor in interest reserving no minerals.

In the other deraignment of title, Union apparently unaware of the 1947 default judgment, conveyed its remaining 120 acres by mineral deed to Alpine Investment Company (Alpine), appellant herein.

In the process of mineral leasing by plaintiff, the default judgment was discovered. Production payments to plaintiff were suspended after a lessee learned of Alpine’s claim of interest. Alpine refused to acknowledge that the 1947 judgment had any effect on its title. This süit followed.

Plaintiff alleged her title emanated from the patent through the 1947 default judgment. In defense, Alpine sought to vacate the 1947 judgment claiming it was void, and thus subject to collateral attack, because the trustees of Union had no notice of the action or of the judgment against it. It asserts the judgment is void on its face in that service by publication is not proper when a defendant’s address or his whereabouts is known. Alpine points to a Blackwell address on the 1926 deed. This address, it claims, is inconsistent with the publication affidavit stating defendant’s last known address was unknown.

The trial court found the trustees of Union were indeed in Blackwell at the time of the default judgment; the 1926 deed showed their address on its face. It also concluded the deed conveyed a fee title to Union. It held the 1947 default judgment quieting title in owner was regular and that no defects appeared on the face of the judgment roll; thus it was not void and not subject to Alpine’s collateral attack. It quieted title to the disputed 120 mineral acres in plaintiff.¹ Alpine appeals.

On appeal Alpine urges the trial court erred in finding the 1947 judgment was not void on its face. Alpine submits the address of Union on the deed, being inconsistent with the publication affidavit, voids the judgment. We do not agree.

This proceeding to vacate the 1947 judgment was not instituted within three years as provided for in 12 O.S.1971 §§ 176, 1031, 1038.² Alpine seeks to vacate the judgment under the provision in § 1038 that “(a) void judgment may be vacated at any time, on motion of a party, or any person affected thereby”. A judgment is not void in the legal sense for want of jurisdiction unless the lack of jurisdiction appears in the record.³ We do not deny Alpine’s argument that service by publication in itself is not sufficient notice to satisfy due process with respect to persons directly affected by the proceedings whose names and addresses are known or very easily ascertainable.⁴ But to create a void decree on these grounds such inadequacy must appear from the face of the judgment roll.

If an affidavit for service by publication does not comply with the requirements of statute, the trial court obtains no jurisdiction over the person of the defendant and the judgment as to him is void.⁵ Here the 1947 affidavit for publication service recites the statutory requirements of due diligence and appears regular on its face. The controversy thus centers on whether the presence of Union’s address on the deed sought to be reformed negates the allegations of due diligence set forth in the affidavit. See Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okl.1968). Could the trial court determine by an inspection of the record, which necessarily must include the deed which is sought to be reformed, that service by publication was improper?⁶ We hold trial court was correct in determining that it could not.

Defects, such as anticipated by decisions holding service by publication improper, are those which readily show from an examination of the record without resort to extrinsic evidence. For example in Farmers' Union Cooperative Royalty Company v. Woodward, 515 P.2d 1381 (Okl.1973), this court held a default judgment was defective on the face of the judgment roll because domestic defendant corporation was served by publication rather than on a registered service agent. The court vacated the judgment as void.

In Woodley v. McKee, 101 Okl. 120, 223 P. 346 (1924), a motion to vacate a judgment procured on service by publication was filed arguing copies of the publication notice and petition were not mailed to defendant within six days after the first publication although his address was known. Defendant claimed the failure to file an affidavit made the judgment void. This court held the judgment was not void on its face because the trial court affirmatively found the service by publication was legally and duly made.⁷

We believe the principles espoused in Woodley are still sound. The affidavit in the 1947 default judgment conformed to the statutes and was valid on its face. The trial court found service by publication was legally and duly made. We will not go behind this finding and consider sufficiency of the evidence of due diligence.

Where service is obtained by publication and the journal entry of judgment recites that publication service is proper, the judgment is not void on its face. Any attack on the ground there was no mailing of copy of petition and publication notice to a last known address must be made within the statutory three years set out at 12 O.S. 1941 § 1038 after rendition of the judgment.⁸

AFFIRMED.

LAVENDER, C. J., and WILLIAMS, SIMMS and HARGRAVE, JJ., concur. IRWIN, V. C. J., HODGES and OPALA, JJ., concur in result. BARNES, J., dissents.

1 . The forty mineral acres conveyed to Pan Mutual Royalties by Union were not affected because Pan Mutual was not a party to the 1947 default judgment. Trial court quieted its title in the 40 acres; no appeal was made.

2 . Cases cited by Alpine wherein a judgment was set aside within the § 176 three year period for opening default judgments on service by publication are not applicable. See Eudaly v. Superior Oil Co., 270 P.2d 335 (Okl.1954); Johnson v. McDaniel, 569 P.2d 977 (Okl.1977).

3 . Woodley v. McKee, 101 Okl. 120, 223 P. 346 (1924); Farmers’ Union Co-operative Royalty Company v. Woodward, 515 P.2d 1381 (Okl.1973).

4 . Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962); Ross v. Thompson, 174 Okl. 183, 50 P.2d 385 (1935); Bomford v. Socony Mobil Oil, 440 P.2d 713 (Okl.1968).

5 . Faulkner v. Kirkes, 276 P.2d 264 (Okl.1954).

6 . Kolp v. State Commissioners of Land Office, 312 P.2d 483 (Okl.1957).

7 . Although action was brought within statutory time provided for setting aside judgments obtained on service by publication, decision was based on whether judgment was void outside of the statute. Ross v. Thompson, supra, n. 4.

8 . Lowe v. Baskett, 311 P.2d 219 (Okl. 1957). Also see Bomford v. Socony Mobil Oil Co., supra, n. 4. Procedural requirements contained therein were made prospective only.