No. 88-479

INTHE SUPREME COURT OF THE STATE OF MONTANA
1989

YVONNE SINK,
Plaintiff andAppellant,-vsROBERT G. SQUIREand JUDITH M. SQUIRE,
Defendants and Respondents.

APPEAL FROM: DistrictCourt of theFifthJudicialDistrict, In and for theCounty of Madison, The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
JackYardley; Yardley & Yardley, Livingston, Montana
For Respondent: ChesterLloyd Jones; Jones & Hoffman, Virginia City, Montana

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# Lz Submitted on Briefs: Jan. 12, 1989 Decided: February 27, 1989Mr. Justice 

### L. C. Gulbrandson delivered the Opinion of the Court.
Appellant Yvonne Sink appeals from thedismissalby the Fifth Judicial District Court,Madison County, of her action to set aside the previous judgment of the court in Civil Action No. 7448 for lack of jurisdiction due to improper service. The court by its dismissal upheld its previous judgment awarding a tax deed to respondents. We reverse the court's dismissal and order the tax deed awarded in theprior action set aside asvoid for lack of jurisdiction. Appellant raises the following issues on appeal: 

### 1. Did the publication of the summons for publication without a court seal amount to an improper service thereby denying the District Court jurisdiction over the tax deed action? 2. Did the respondents fail to exercise due diligence to determine appellant's current place of residence prior to mailing the summons for publication and complaint to the incorrectaddress? The appellant Yvonne Sink, together with her husband James Sink, purchased a 10.293 acre lot in Madison County from The Shining Mountains North (a limited partnership) in themid 1970's. Thereafter,Yvonne and James separated. She thenmoved fromAnchorage,where shehad been livingwith her husband prior to their separation, to the San Francisco Bay
area. Upon separation,they orally agreed that Yvonne would make the regular payments on the property while James would pay the property taxes. Yvonne continued tomake payments on the property until 1983. At that time the balance owing 

### on the property was paid in full, and she and her estranged husband received awarranty deed to theproperty from ShininqMountains. James Sink subsequently conveyed his interest in the property to Yvonne by a quitclaim deed dated onMarch 9, 1987. Shining Mountains remained the owner of record, however, because Yvonne failed to record her deed with the Madison CountyClerk and Recorder's Office. Yvonne testified she was unaware of any requirement to record her ownership before she herself sold theproperty. Although Yvonne diligentlv made payments until the amount owing on the property was paid in full, James Sink failed to pay the taxes assessed on the property. Consequently, the Treasurer of Madison County (County Treasurer) issued a Certificate of Tax Sale on July 22, 1981 for failure to pay the $91.40 in taxes assessed against the property in 1980. Yvonne testified she received no actualnotice of thesedelinquenttaxes. On March 26, 1985, the respondents, Robert and Judith Squire,paid all the taxes,penalties,and interest assessed and outstanding against the property from 1980 to date. The total paid amounted to $609.71. The County Treasurer thereafter assigned the Tax Sale Certificate to them. The Squires then instituted CivilAction No. 7448 againstYvonne and James Sink in order to acquire a tax deed to the property. The Sheriff stated by way of a Sheriff'sReturn !which erroneously failed to name the parties and to give the date the Sheriffwas unable to locate them) that he was unable to locate the Sinks in Madison County, and thus he could not
serve the complaint and summons upon them. The Squires' attorney then filed an affidavit requesting an order for service of summons by publication. The Clerk of Court granted this requested order and issued a summons for publication 

### on April 26, 1985. This summons failed to listthe name or address of the plaintiffs' attorney. The attorney for the plaintiffs signed an affidavit attesting t.o themailing of a copy of this summons for publication. A second summons for publication later was signed on May 2, 1985and thenpublished for three consecutiveweeks in the Madisonian, a local county newspaper. This latter published summons correctly listed the name and address of the plaintiffs' attorney and contained the Clerk of Court's signature, although it did not have a court seal. The plaintiffs, however, did 

### - not mail this legally correct May 2nd version toYvonne and James Sink at their last determined address in Homer,Alaska. Defendants failed to appear or answer the summons within the twenty day period following service of the
summons. The District Court then entered a default judgment against the Sinks on June 18, 1985 and issued a tax deed to the Squires. When Yvonne Sink subsequently learned of this default judgment,she filed the instantaction requesting the District Court to declare the default judgment in Civil Action No. 7448 void for lack of jurisdiction because of improper service upon defendants. The District Court ruled that the plaintiffs substantially complied with the spirit and purpose of the service requirements and that the court therefore had jurisdiction over Civil Action No. 7448. Consequently, the District Court dismissed thepresent case. Yvonne Sink appeals from the court's determination that jurisdiction existed in Civil Action No. 7448 and from the court's subsequentdismissal of this case. At the outset, we note that the most egregious error affecting the jurisdictionof the District Court tohear this
case was the plaintiffs' failure tomail to the defendants a copy of the summons forpublication with the name and addressof plaintiffs' attorney on it. This issuewas not raised by Yvonne Sink on appeal. However,an examination of the record reveals that the District Court took judicial notice of the facts of the prior Civil Action No. 7448 and the parties stipulated to the admission of these facts into the record. These facts give rise to the jurisdictional error towhichwe
now turn our attention. Rule 4D(5)(e)

### ,M.R.Civ.P. requires a plaintiff tomail. a copy of the summons for publication and complaint to a. defendant'splace of residence. The content and formof this

summons for publication must comply with the mandatory requirements set forth in Rule 4C(2)

### , M.R.Civ.P. These requirementsare as follows: The summons shallbe signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state 

### -- the name and address of the plaintiff

### 's attorney, if any, 

### - otherwise theplaintiff's address, and the time within which these rulesrequire the defendant to appear and defend, and shall notify him that in case of his failure to do so judgmentby defaultwill be rendered against him for the relief demanded in the complaint. (Emphasis added.) The summons for publication sent to the defendants on April 26, 1985 failed to fully comply with these mandatory requirements. Plaintiffs had an attorney, yet the summons for publication actually sent to the defendants failed to state the name and address of plaintiffs' attorney. The
summons for publication actually published corrected this omission,but a copy of this latterpublished summonswas not mailed to the defendants.This Court has previously required strict and literal compliance with the statutory procedures required for constructive service. E.g., Shields v. Pirkle Refrigerated Freight Lines, Inc. (1979),181 Mont. 37, 44, 591 P.2d 1120, 1124, citing from 62Am.Jur.2d Process $ 68. As this Court haspreviously stated: It is the settled judicial policy of this state thatmore accurate observance,with regard to compliance with provisions of the statutes,isrequired in constructive service than in personal service; also that less presumption in favor of jurisdiction of a court, upon rendition of judgment, is indulged in when the judgment is based upon constructive service than when based upon personal service.
Holt v. Sather (1928), 81 Mont. 442, 448, 264 P. 108, 111. Such compliance with mandatory service requirements is essential to jurisdiction. Consequently, this Court will uphold the jurisdictionof a District Courtdespite a failure to comply with all mandatory service requirements only when the plaintiff affirmatively shows that there is absolutely - no possibility of prejudice from the failure. See,e.g., Holt,

No such showingwasmade in this case. The possibility exists that James and/or Yvonne Sink did not know where to send their response because of the omission of the name and address of the plaintiffs' attorney on the copy of the
summons for publication mailed to them. The District Court thus erred in dismissing the present case which challenged the court's jurisdiction over Civil ActionNo. 7448. Wehold that the plaintiffs' failure to comply with this mandatory service requirement prevented the District Court from obtaining jurisdictiontohear and render a judgment inCivilAction No. 7448. We therefore need not discuss those jurisdictionalerrors raised by Yvonne Sink on appeal. The judgment of the District Court in this case is reversed and the prior judgment and tax deed issued in Civil Action No. 7448 ordered set aside as void for lack of jurisdiction.

We concur:

Justices