No. 86-163 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IDA J. KAHLE, 

Plaintiff and Appellant, 

-vsIDELLA SMITHERS, Treasurer of Flathead 

County; and LEE McDONALD, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Oleson Law Firm; H. James Oleson, Kalispell, Montana 

For Respondent: 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Jonathan B. Smith, Deputy County Attorney, Kalispell 

Hash, Jellison, O'Brien & Bartlett; James C. Bartlett, 

Kalispell, Montana 

Submitted on Briefs: Oct. 10, 1986 

Decided: March 4, 1987 

-7411- 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The Treasurer of Flathead County issued a tax deed to 

Lee McDonald for land owned by Ida Kahle. Ida Kahle then 

brought an independent action seeking to void the tax deed. 

The District Court for the Eleventh Judicial District granted 

the summary judgment motion of Lee McDonald which in effect 

upheld the validity of the issued tax deed. We reverse. 

The determinative issue is whether the District Court 

erred in granting the summary judgment motion of Lee 

McDonald. 

Ida Kahle became the owner of the property in dispute in 

1954. The Flathead County Treasurer (Treasurer) advertised 

the property for sale because of delinquent 1979 taxes. In 

1980 the property was struck off to Flathead County for 

$190.46. In 1982 Lee McDonald paid a total of $1,123.71 

covering delinquent taxes, penalties, costs, and interest 

through 1981 and obtained an Assignment of Tax Sale Certificate. He continued to pay taxes on the property. The property was not redeemed by Ida Kahle. 

In 1983, Mr. McDonald brought an action to procure a tax 

deed in the District Court under 55 15-18-301 to 309, MCA. 

Service was made by publication of summons. Ida Kahle did not 

appear in the action. On August 31, 1983, a default judgment 

was entered which resulted in the issuance of a tax deed by 

the county treasurer to Mr. McDonald. 

On February 24, 1985, Ida Kahle brought a separate 

action in the District Court seeking to collaterally attack 

the judgment entered August 31, 1983. Ida Kahle and Lee 

McDonald filed cross-motions for summary judgment. The 

District Court held that the case was barred by the doctrine 

of res judicata as a result of the judgment of August 31, 
1983. Summary judgment was entered in favor of Lee McDonald 

and Ida Kahle appealed. 

Did the District Court err in granting the summary 

judgment motion of Lee McDonald? 

After receiving his Assignment of Tax Sale Certificate, 

Mr. McDonald chose to procure a tax deed by a District Court 

proceeding under SS 15-18-301 to 309, MCA. In that action, 

the District Court ordered the Flathead County Treasurer to 

issue a deed of conveyance to Mr. McDonald. Mrs. Kahle did 

not appear in that proceeding. 

Ida Kahle contends that the tax deed judgment should be 

rendered invalid for two reasons. First, Mrs. Kahle argues 

that the Flathead County Treasurer was negligent in performing her record keeping duties and this negligent record 

keeping caused insufficient service of process on her. 

Second, Mrs. Kahle argues the notice requirements of 

15-18-304, MCA, and Rule 4D, M.R.Civ.P., were not complied 

with and thus the tax deed issued by the county treasurer was 

void. 

In her first argument, Mrs. Kahle relies on 

SS 7-6-2111 (2) (a) and 7-6-2116, MCA, and concludes that the 

Treasurer's duties were not "honestly, diligently and correctly performed." We can find nothing in the record that 

supports these allegations. Mrs. Kahle also states that the 

"[tlreasurer failed to keep a triplicate copy of the tax 

receipt document in her office as required by S 7-6-2116, 

MCA." Although S 7-6-2116, MCA, does require the county 

treasurer to retain a triplicate copy of a receipt in the 

office, we conclude that nothing in the record shows that the 

Flathead County Treasurer was negligent in retaining the 

triplicate copy or in performing her record keeping duties. 

Therefore, this argument fails. 
Mrs. Kahle argues that she was never notified of the 

pending action for procurement of the tax deed and as a 

result the tax deed itself was void. We conclude that Rule 

4D (5) , M.R.Civ.P., is controlling on the question of service 

of process upon Ida Kahle. Rule 4D (5) (e) , M.R.Civ.P., 

provides: 

Mailing summons and complaint. A copy of the 

summons for publication and complaint, at any time 

after the filing of the affidavit for publication 

and not later than 10 days after the first publication of the summons, shall be deposited in some 

post office in this state, postage prepaid, and 

directed to the defendant at his place of residence 

unless the affidavit for publication states that 

the residence -- of the defendant - is unknown. (Emphasis added.) 

The affidavit for publication of summons submitted by Mr. 

McDonald's attorney stated in pertinent part: 

3. That a return of the Summons, on file with 

the Clerk of the District Court of said Judicial 

District in and for the County of Flathead, shows a 

failure to find the Defendant, Ida J. Kahle, a/k/a 

Ida J. Stodgell, in the State of Montana; 

4. That the P Defendant, -- Ida J. Kahle, a/k/a Ida 

- J. Stodgell, cannot, after due diligence, - be found 

within the State - of Montana; (Emphasis added.) 

In substance the affidavit states that the defendant cannot 

be found within the State of Montana. That does not satisfy 

the Rule 4D(5)(e), M.R.Civ.P., requirement that the affidavit 

state that the residence of the defendant is unknown. An 

affidavit statement that the defendant cannot, after due 

diligence, be found within the State of Montana is not the 

equivalent of stating that the residence of the defendant is 

unknown. The key fact required in the affidavit for publication of summons is that the residence of the defendant is 

unknown. That fact is not contained in the present affidavit 
for publication. Here the affiant could have known the 

address of defendant Kahle was outside the State of Montana 

and nevertheless completed the affidavit. 

We do not find any Montana cases which are controlling. 

However, we conclude that the plain wording of Rule 4D(5) (e), 

M.R.Civ.P., requires that the affidavit for publication of 

summons state that the residence of the defendant is unknown. 

Because the affidavit for publication failed to make that 

statement or an equivalent statement, we conclude that the 

affidavit was insufficient. We therefore hold that the 

service of process upon Ida Kahle was insufficient to obtain 

jurisdiction over her. This conclusion is consistent with 

the cases in Montana which have held that tax redemption 

statutes must be liberally construed in favor of the redemptioner and the exercise of her rights of redemption. See 

Lowery v. Garfield County (1949), 122 Mont. 571, 581, 208 

P.2d 478, 484. 

Because of the insufficiency of the service of process 

upon Ida Kahle in the action to procure the tax deed, we 

further conclude that Ida Kahle could collaterally attack the 

judgment of August 31, 1983, in the present proceedings. 

That conclusion is mandated by Russell Realty Co. v. 

Kenneally (1980), 185 Mont. 496, 501, 605 P.2d 1107, 1110, in 

which we stated: 

While it is a general rule that a judgment cannot 

be attacked in a collateral action such attack is 

permissible if the first judgment is void for lack 

of jurisdiction. (Cite omitted.) It is axiomatic 

that if service of process on a party is improperly 

made, the court acquires no jurisdiction over that 

party, (cite omitted) and it may collaterally 

attack the judgment. 

Mrs. Kahle requested costs and attorney fees in accordance with 15-18-306, MCA. This is the code section . 
providing for costs and attorney fees in proceedings to 

procure a tax deed. That is not the nature of the present 

proceeding. Mrs. Kahle here has brought an action to collaterally attack a judgment rather than a proceeding to procure 

a tax deed. We hold that Mrs. Kahle is not entitled to 

recover costs or attorney fees under 5 15-18-306, MCA. 

We reverse the summary judgment order of the District 

Court and remand for further proceedings consistent with this 

opinion.