No. 88-479 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

YVONNE SINK, 

Plaintiff and Appellant, 

-vsROBERT G. SQUIRE and JUDITH M. SQUIRE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Madison, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jack Yardley; Yardley & Yardley, Livingston, Montana 

For Respondent : 

Chester Lloyd Jones; Jones & Hoffman, Virginia City, 

Montana 

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Submitted on Briefs: Jan. 12, 1989 

Decided: February 27, 1989 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Appellant Yvonne Sink appeals from the dismissal by 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 the prior 

action set aside as void 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 

incorrect address? 

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 

the mid 1970's. Thereafter, Yvonne and James separated. She 

then moved from Anchorage, where she had been living with 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 to make 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 a warranty deed to the property from Shininq 
Mountains. James Sink subsequently conveyed his interest in 

the property to Yvonne by a quitclaim deed dated on March 9, 

1987. Shining Mountains remained the owner of record, 

however, because Yvonne failed to record her deed with the 

Madison County Clerk and Recorder's Office. Yvonne testified 

she was unaware of any requirement to record her ownership 

before she herself sold the property. 

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 these delinquent taxes. 

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 Civil Action No. 7448 against Yvonne 

and James Sink in order to acquire a tax deed to the 

property. 

The Sheriff stated by way of a Sheriff's Return !which 

erroneously failed to name the parties and to give the date 

the Sheriff was 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 list 
the name or address of the plaintiffs' attorney. The 

attorney for the plaintiffs signed an affidavit attesting t.o 

the mailing of a copy of this summons for publication. 

A second summons for publication later was signed on 

May 2, 1985 and then published for three consecutive weeks 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 to Yvonne 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 instant action 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 the present case. 

Yvonne Sink appeals from the court's determination that 

jurisdiction existed in Civil Action No. 7448 and from the 

court's subsequent dismissal of this case. 

At the outset, we note that the most egregious error 

affecting the jurisdiction of the District Court to hear this 

case was the plaintiffs' failure to mail to the defendants a 

copy of the summons for publication with the name and address 
of plaintiffs' attorney on it. This issue was 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 to which we 

now turn our attention. 

Rule 4D(5) (e) , M.R.Civ.P. requires a plaintiff to mail. 

a copy of the summons for publication and complaint to a. 

defendant's place of residence. The content and form of this 

summons for publication must comply with the mandatory 

requirements set forth in Rule 4C (2) , M.R.Civ.P. These 

requirements are as follows: 

The summons shall be 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 plaintif f ' s attorney, if any, 

otherwise the plaintiff's address, and 

the time within which these rules require 

the defendant to appear and defend, and 

shall notify him that in case of his 

failure to do so judgment by default will 

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 latter published summons was 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 62 Am.Jur.2d Process $ 68. As this Court 

has previously stated: 

It is the settled judicial policy of this 

state that more accurate observance, with 

regard to compliance with provisions of 

the statutes, is required 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 jurisdiction of a District Court despite 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 showing was made 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 Action No. 7448. We hold 

that the plaintiffs' failure to comply with this mandatory 

service requirement prevented the District Court from 

obtaining jurisdiction to hear and render a judgment in Civil 
Action No. 7448. We therefore need not discuss those 

jurisdictional errors 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