No. 12550 

IN THE 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, 

formerly MARY ELLEN CRUM, 

Plaintiffs and Appellants, 

JOHN L. MIDKIFF, SR., and J. L. 

MIDKIFF, also known as JOHN 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 Z 8 '874 Filed: . 

Submitted : January 18, 1974 

Decided : I"EB 2 8 :ypf 
Mr. 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 sixteenth judicial 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 files which by stipulation 

are before this Court. In 1955 a quiet title action, John L. 

Midkiff, et al. v. Irma Ann Rosen, et al., was filed in Rosebud 

County as Civil No. 6253. In 1969 another action was commenced 

by the defendants in Civil No. 6253 to vacate the judgment entered in Civil No. 6253 in favor of plaintiffs, Midkiff, et al. The 

1969 action was filed in the district court as Civil No. 7453. 

Hereinafter, Irma Ann Rosen, Grace J. Weeks and Mary Ellen Koch, 

the defendants in Civil No. 6253, the plaintiffs in Civil No. 7453 

and appellants herein will be referred to as Rosens, and John L. 

Midkiff, Sr. and John L. Midkiff, Jr., the plaintiffs in Civil 

No. 6253, the defendants in Civil No. 7453 and respondents herein 

will be referred to as Midkiffs. 

The district court file in 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 to deposit the sum of $2,712.94 to the 

use of Midkiffs, as tax purchasers in the event Midkiffs' claim 

to the real property should not succeed. This order was mailed 

to R. C. Harken, Esq., attorney for Rosens and to the Rosebud 

County Treasurer. One publication of the order was made in the 

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Forsyth Independent as is shown by affidavit. 

On September 29, 1967, the district court quieted title 

in Midkiffs as to all defendants, except the Rosens. The hearing 

on the order to show cause was held on October 11, 1967. As to 

this hearing the minute entry of the district court reads: 

"Hearing on Order to Show 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 to be made no later than 

November 12, 1967. Let the record show that 

Mrs. Roe, of Lewistown, Idaho, one of the defendants named in the above entitled cause 

formerly bearing the name of Rosen, appeared 

in court by her counsel, R. C. Harken and made 

no objection to the 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 time required. By supplemental and final decree of November 17, 1967, the district court 

entered a judgment for Midkiffs and against Rosens quieting title 

to the lands in dispute in the Midkiffs. 

The district court file in Civil No. 7453 reveals that 

on October 21, 1969, this cause was commenced by Rosens to attack 

the judgment entered in Civil No. 6253. In April 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 to R. C. Harken, at that time attorney 

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

. on Rosens nor was the order posted as required by section 84-4158, 

R.C.M. 1947; that R. C. Harken, by letter of October 7, 1967, 

forwarded a copy of the order to each of the appellants but that 

only one of them Irma Ann Rosen, received the letter prior to the 
hearing date; and that by the decree of the district court default judgment was entered against Rosens without notice of 

written application for judgment, as provided by Rule 55(b)(2), 

M.R.Civ.P. and that neither R. C. Harken nor the Rosens received 

notice of entry of judgment as required by Rule 77(d), M.R.Civ.P. 

On December 20, 1972, Midkiffs filed their answer to the 

amended complaint and a counterclaim. Midkiffs denied that 

personal service was 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'counterclaim was that the judgment against Rosens in Civil No. 6253 was 

not a default judgment 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, the motion 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 to amend the district 

court's findings of fact and conclusions of law which was denied. 

Rosens have appealed. 

Rosens present two issues for review, both of which can 

be summarized as follows: Did the district court err in granting 

the motion 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 there was 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 to Rule 81, M.R.Civ.P., certain statutory proceedings 
listed in Table A, M.R.Civ.P. take precedence over the rules 

where inconsistent. Section 84-4158, R.C.M. 1947 is so listed 

and provides in part: 

"Upon the hearing of the order to show cause 

the court shall have jurisdiction to determine 

said amount and to make an order that the same 

be paid into court 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 to have waived 

any defect in the tax proceedings and any right 

of redemption, and thereupon, irrespective of any 

irregularities, defects or omissions or total 

failure to observe 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, or concerning tax deeds, whether or 

not such omissions or failures make said proceedings void (other than that the taxes were not 

delinquent or have been paid), the title of 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 district court minutes of October 11, 

1967, R. C. Harken appeared on October 11, 1967, and was advised 

in open court of the fact that the failure to deposit 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 to the petition, 

with the understanding that the defendants would still have the 

opportunity to appear in the cause and answer and contest the 

claim. The record shows that at all times prior to and including 

the time of 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 quieting 
title in Midkiffs. The deposit was not made and the decree 

was entered. It is this Court's view that it would be redundant to require 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 failure to deposit the money, the district court entered the 

decree quieting title in Midkiffs. For Rosens now to say that 

they should have been given notice of this entry of judgment 

pursuant to Rule 77(d), M.R.Civ.P. is without merit. 

Rosens also contend 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. 

As to the order to show cause of September 20, 1967, section 84-4158 states: 

"In any action now pending, or hereafter brought 

to set aside or annul any tax deed, or to quiet 

title * * * the purchaser or his successor upon 

filing an affidavit may obtain from the court an 

order directed to the person claiming the property 

* * * or to show cause on a date to be fixed in 

said order, not exceeding thirty (30) days from 

the date thereof, why such payments should not be 

made. Said affidavit shall set forth the place of 

residence of said true owners and whether they are 

in the state of Montana, if known to the plaintiff, 

or that the same is not known to the plaintiff. 

"Said order shall be filed with the clerk and a 

copy served personally upon all persons shown in 

said affidavit to be residents of and in the state 

of Montana, and jurisdiction shall be acquired over 

all other persons by publishing the same once in 

a newspaper in the county, and by posting the same 

in three (3) public places in the county at least 

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 to 
be notified of the order to show cause by having it published 

in a newspaper in the county and by posting the same in three 

public places in the county at least ten days before the date 

set for hearing. 

The interrogatories to the three appellants show identical answers to the following question: " * * * Please state 

all proof 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 file and that, therefore, "we assume that it was 

not posted." 

The presumption in favor of the posting by the clerk, 

while rebuttable, is provided in section 93-1301-7(15), R.C.M. 

1947, which provides, "That official duty has been regularly 

performed. I' 

It is this Court's opinion that a mere assumption in the 

absence of an affidavit in the court file is not the type of 

proof which is necessary to override the presumption that the act 

was officially performed in a routine and regular manner, and to 

have received the answer by appellants in the interrogatory was 

ample indication to the district court and to this Court that 

there was no other proof. 

The district court properly concluded that the Rosens were 

at all times under the jurisdiction of the district court. 

Rule 56 (c) , M.R.Civ.P., provides in part: 

" * * * The judgment sought shall be rendered 

forthwith if the pleadings, depositions, answers 

to interrogatories, and admissions on file show 

that there is no genuine issue as to any material 

fact and that the moving party is entitled to a 

judgment as a 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 to all 

material facts which would, as a matter of law, 

entitle him to judgment. 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 file in Civil 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 to a judgment as a matter of law. 

For the foregoing reasons, the judgment,of the district 

court is affirmed. 

,-i----------------

Chief Justice 

We concur: 

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