City of Okolona v. Lindsey

LEIBSON, Justice,

dissenting.

Respectfully, I dissent.

The filing of the petition to incorporate the City of Okolona gave the court subject matter jurisdiction. KRS 81.050(1) specifies that this is how the “proceedings” are “commenced,” and the validity of the petition is not questioned.

KRS 81.050(2) then provides that “the petition shall be docketed for hearing,” and further provides that “notice of the filing of the petition and of its object shall be given by publication pursuant to KRS Chapter 424.” KRS 81.060 then provides for the procedure “at the hearing.”

The defect in the notice vitiates the hearing, but there is no reason why it should defeat the jurisdiction of the court to hear the matter. Jurisdiction attached at the time that the petition to incorporate was properly filed and was not divested by failing to fully comply with the notice by publication provisions. Wakefield v. City of Shelbyville, Ky.App., 563 S.W.2d 756 (1978) and City of Jeffersontown v. Hurstbourne, Ky.App., 684 S.W.2d 23 (1984) should control. Booth v. Copley, 283 Ky. 23, 140 S.W.2d 662 (1940) should be distinguished because the issue was presented in a different light, one in which the holding that there was, no jurisdiction was simply the equivalent of vacating the judgment.

KRS 81.060(1) states that:

“At the hearing the court shall, if the proper notice has been given or publication made, and no defense is interposed, enter a judgment establishing a city as requested by the petition,” etc.

This language plainly suggests that the point of return if a proper notice by publication has not been given, is to return back to the point of issuance of a proper notice.

This case cannot be distinguished in substance from our recent decision in Potter v. Breaks Interstate Park Commission, Ky., 701 S.W.2d 403 (1986). Potter was a condemnation case where there was a defect in the notice given by warning order attorney which defeated that state’s right to proceed further against those property owners as to whom the notice was defective. We held that in these circumstances the court had no jurisdiction to hear the case as to these property owners, that this vitiated the judgment as to them, and we reversed and remanded so that the case could proceed further after proper notice.

The City of Okolona argues that its opponents rely “on archaic distinctions between in rem and in personam actions,” and further that their arguments are “blinded to the common sense purpose of public notice.” I agree. In present circumstances there is no more reason to dismiss this action for failure to serve a proper notice than there would be to dismiss an in per-sonam action for failure to obtain service of a subpoena. All that is necessary is a new notice by publication, the equivalent of a new subpoena.