### No. 12550 INTHE SUPREME COURT OF THE STATE OF MONTANA 

### 1974

IRMA ANN 

### ROSEN, formerly IRMA ANN CRUM; GRACE J. 

### WEEKS, formerly 

### GRACE J. 

### CRUM; 

### and MARY ELLEN KOCH, 

### formerlyMARY ELLEN CRUM, 

### Plaintiffs and Appellants,

JOHN 

### L. MIDKIFF, SR., and J. 

### L. MIDKIFF, alsoknown asJOHN

### L. MIDKIFF

# ,JR.

## , Defendants and Respondents.

Appeal from: District Court of the Sixteenth Judicial District, Honorable Alfred B. 

### Coate, Judge presiding. '1 

### Counsel of Record : 

### For Appellants: 

### Kenneth 

### R. Wilson argued, Miles City, Montana For Respondents: 

### William F

# .Meisburger argued, Forsyth, Montana



# Ej3 Z8

## '874 Filed:



### . Submitted: 

### January 18, 1974 Decided

### :

# I"EB28:ypfMr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal by plaintiffs, Irma Ann Rosen, Grace J. Weeks and Mary Ellen Koch, from a judgment rendered by the district court of the sixteenthjudicial district in and for the county of Rosebud upon the granting of a motion for summary judgment made by the defendants, John L. Midkiff, Sr. and John L. Midkiff, Jr. There are two district court fileswhich by stipulation

arebefore this Court. In 1955 a quiet title action, John L. Midkiff, etal. v. Irma Ann Rosen, et al., was filed inRosebud County as Civil No. 6253. In 1969 another action was commenced by the defendants inCivil No. 6253 tovacate the judgment entered in Civil No. 6253 in favor of plaintiffs, Midkiff, et al. The 1969 action was filed inthe districtcourt asCivil No. 7453. Hereinafter, Irma Ann Rosen, Grace J. Weeks and Mary Ellen Koch, the defendants inCivil No. 6253, the plaintiffs inCivil No. 7453 and appellants herein 

### willbe referred toasRosens, and John L. Midkiff, Sr. and John L. Midkiff, 

### Jr., the plaintiffs inCivil No. 6253, the defendants in CivilNo. 7453 and respondents herein 

### willbe referred toasMidkiffs. The district court filein Civil No. 6253 shows the following pertinent facts: The complaint in this cause 

### was answered by the Rosens. For reasons unknown, the case remained dormant for several years. On September 20, 1967, petition and affidavits in support thereof 

### were filed by Midkiffs pursuant to section 84-4158, R.C.M. 1947. On that same day, the district court issued an order directing Rosens to show cause why they should not be directed todeposit the sum of $2,712.94 tothe

use of Midkiffs, as tax purchasers inthe event Midkiffs' claim tothe realproperty should not succeed. This order was mailed to R. C. Harken, Esq., attorney for Rosens and tothe Rosebud County Treasurer. One publication of the order was made inthe



## - 2

## -Forsyth Independent asis shown by affidavit. On September 29, 1967, the district court quieted title inMidkiffs asto alldefendants, except the Rosens. The hearing

on the order to show cause was held on October 11, 1967. As to thishearing theminute entry of the district court reads: "Hearing on Order toShow Cause. Affidavit of Publication has been filed herein showing due notice given. William F. Meisburger sworn and presented proof. Order requiring a deposit of $2,712.94 from the answering defendants 

### is signed. Deposit tobe made no later than November 12, 1967. Let the record show that Mrs. Roe, of Lewistown, Idaho, one of the defendants named inthe above entitled cause formerly bearing the name of Rosen, appeared incourt by her counsel, R. C. Harken and made no objection tothe Petition for the requirement of Deposit, with the understanding that the defendants would still have the opportunity to appear in said cause and answer and contest the claim of the plaintiff. Order is signed." No deposit was made within the 

### timerequired. By supplemental and final decree of November 17, 1967, the district court entered a judgment forMidkiffs and against Rosens quieting title tothe lands indispute intheMidkiffs. The district court filein Civil No. 7453 reveals that

on October 21, 1969, this cause

### was commenced by Rosens toattack the judgment entered in Civil No. 6253. InApril 1970, Midkiffs filed their answer and a motion for summary judgment. On June 26, 1970, Rosens filed a motion for leave to amend the complaint and

an amended complaint was filed on December 15, 1972, which in substance alleged: that the order to show cause issued on September 20, 1967, was mailed toR. C. Harken, atthat 

### timeattorney for the Rosens and that personal service was not made of this order

. on Rosens nor was the order posted asrequired by section 84-4158, R.C.M. 1947; that R. C. Harken, by letterof October 7, 1967, forwarded a copy of the order toeach of the appellants but that only one of them Irma Ann Rosen, received the letter prior tothehearing date; and that by the decree of the districtcourt default judgment was entered against Rosens without notice of written application forjudgment, asprovided by Rule 55(b)(2), M.R.Civ.P. and that neither R. C. Harken nor the Rosens received notice of entry of judgment asrequired by Rule 77(d),M.R.Civ.P. On December 20, 1972, Midkiffs filed their answer tothe amended complaint and a counterclaim. Midkiffs denied that personal servicewas not made and that there was no posting as required by the statute, and denied that the order of October 11, 1967 was not served. The only new allegation in~idkiffs'counterclaimwas that the judgment against Rosens in Civil No. 6253 was not a defaultjudgment and Rule 55(b)(2),M.R.Civ.P. did not apply. On March 6, 1973, Midkiffs moved for summary judgment, and on March 30, 1973, themotion was heard. Interrogatories were taken by Midkiffs of the Rosens. On May 15, 1973, the district court entered its findings of fact and conclusions of law and granted Midkiffs' motion for summary judgment and dismissed Rosens' complaint with prejudice. Rosens moved toamend the district court's findings of fact and conclusions of 

### lawwhich 

### was denied. Rosens have appealed. Rosens present two issues for review, both of which can be summarized as follows: Did the district court err ingranting themotion for summary judgment? Rosens contend that the district court should not have granted the summary judgment for the reason that Rule 77(d), M.R.Civ.P., which requires service of notice of entry of judgment,

was not followed in Civil No. 6253, and therewas no showing of said service. The purpose of Rule 77(d),M.R.Civ.P. is obviously to inform a party that a judgment has been entered against him and the nature and amount of relief and damages thereby granted. Pursuant toRule 81, M.R.Civ.P., certain statutoryproceedingslisted inTable A, M.R.Civ.P. take precedence over the rules where inconsistent. Section 84-4158, R.C.M. 1947 is so listed and provides inpart: "Upon the hearing of the order to show cause the court shallhave jurisdiction todetermine said amount and tomake an order that the same be paid intocourt within a given 

### time, not exceeding thirty (30) days after the making of said order. If such amount, when so determined, shall not be paid within the 

### time fixed by said court, then said true owner shall be deemed tohave waived any defect inthe tax proceedings and any right of redemption, and thereupon, irrespective of any irregularities, defects or omissions or total failuretoobserve any of the provisions of the statutes of Montana regarding the assessment, levying of taxes, or sale of property for taxes, and the giving of notices, including notices of redemption, orconcerning tax deeds, whether or not such omissions or failuresmake said proceedings void (otherthan that the taxes 

### were not delinquent or have been paid), the titleof such true owner shall not be quiet as against said purchaser or his successors, and a decree shall be entered in said action quieting the title of said purchaser or his successor as against said true owner." According to the districtcourt minutes of October 11, 1967, R. C. Harken appeared on October 11, 1967, and was advised inopen court of the fact that the failure todeposit the sum of $2,712.94 by November 12, 1967, would result in the entry of judgment. The district court minutes further indicate that R. C. Harken appeared for the "defendants" (Rosens)

# . It is further noted that attorney Harken made no objection tothe petition, with the understanding that the defendants would still have the opportunity toappear in the cause and answer and contest the claim. The record shows that atalltimes prior toand including the timeof the hearing on the order to show cause, Rosens were represented by attorney Harken. Rosens, through their attorney, had notice that if they did not deposit the sum required, a decree pursuant to section 84-4158, R.C.M. 1947, would be entered against them quietingtitle inMidkiffs. The deposit was not made and the decree

was entered. It is this Court's view that it would be redundant torequire the application of Rule 77(d),M.R=Civ.P. under the circumstances here, there being notice that a decree would be entered if the money was not deposited. By reason of Rosens'

own failuretodeposit the money, the district court entered the decree quieting title inMidkiffs. For Rosens now to say that they should have been given notice of this entry of judgment pursuant toRule 77(d),M.R.Civ.P. is without merit. Rosens alsocontend that the motion for summary judgment should not have been granted for the reason that the order of October 11, 1967, was invalid because of lack of jurisdiction under section 84-4158, supra. Rosens argue that because there is no showing that the order to show cause of September 20, 1967

was posted in three public places ten days before the hearing date, section 84-4158, R.C.M. 1947, was not followed. Astothe order to show cause of September 20, 1967, 

### section 84-4158 states: "In any action now pending, or hereafter brought tosetaside or annul any tax deed, or toquiet 

### title

## * * * the purchaser or his successor upon filingan affidavitmay obtain from the court an order directed tothe person claiming the property 

## * 

## * * or to show cause on a date tobe fixed in said order, not exceeding thirty (30) days from the date thereof, why such payments should not be made. Said affidavit shall setforth the place of residence of said true owners and whether they are in the stateof Montana, if known tothe plaintiff, or that the same isnot known tothe plaintiff. "Said order shallbe filed with the clerk and a copy served personally upon allpersons shown in said affidavit tobe residents of and in the state of Montana, and jurisdiction shallbe acquired over allother persons by publishing the same once in a newspaper inthe county, and by posting the same inthree (3) public places in the county atleast ten (10) days before the day fixed for the hearing and by leaving a copy with the county treasurer." Section 84-4158, R.C.M. 1947,requires a nonresident tobe notified of the order to show cause by having it published ina newspaper inthe county and by posting the same in three public places inthe county atleast ten days before the date setfor hearing. The interrogatories to the three appellants show identical answers tothe following question: 

### " 

## * * 

## * Please state allproof and evidence that you have knowledge of that said order to show cause was not properly posted." Their answers
were uniformly that their attorney did not find an affidavit of posting in the fileand that, therefore, "we assume that it was not posted." The presumption in favor of the posting by the clerk, while rebuttable, isprovided in section 93-1301-7(15), R.C.M. 1947, which provides, "That officialduty has been regularly performed. I' It is this Court's opinion that a mere assumption in the absence of an affidavit inthe court fileisnot the type of proof which 

### isnecessary to override the presumption thatthe act

was officially performed in a routine and regular manner, and to have received the answer by appellants in the interrogatory was ample indication tothe districtcourt and tothis Court that there was no other proof. The districtcourt properly concluded that the Rosens 

### were atalltimesunder thejurisdiction of the districtcourt. Rule 56(c)

## , M.R.Civ.P., provides inpart: 

## " 

## * * * The judgment sought shallbe rendered forthwith if the pleadings, depositions, answers tointerrogatories, and admissions on fileshow that there isno genuine issue as to any material fact and that themoving party isentitled toa judgment asa matter of law. 

## * * *" As this Court in Stensvad v. Miners & Merchants Bank of Roundup, Mont

# .- , 517 P.2d 715, 30 St.Rep. 1178, 1182, stated:Rule I1under/56(c)

## ,M.R.Civ.P., the moving party for summary judgment must bear the burden of proving the absence of any genuine issue as toall material facts which would, as a matter of law, entitlehim tojudgment. Kober 

### v. Kyriss v. Billings Deaconess Hospital, 148 Mont. 117, 417 P.2d 476." From our examination of the record herein, that 

### is, the pleadings, Rosens'answers to interrogatories and the district court fileinCivil No. 6253, and from our discussion of the contentions presented by Rosens, it is our conclusion that there is no genuine issue as to any material fact and Midkiffs were entitled toa judgment asa matter of law. For the foregoing reasons, the judgment,of the district court 

### is affirmed.

,-i----------------------------- Chief Justice We concur: *-."+. ",.*
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