Parker v. ROSS

WOLFE, Justice

(concurring specially).

I am extending my concurrence into a brief discussion of “due diligence” required by a plaintiff in ascertaining *427 the necessary facts to be used as a basis for an application for the publication of summons. I do this not only to indulge in an older lawyer’s luxury of giving advice to younger members of the bar, but because in cases involving summons by publication, I am not so much interested in what, under the facts of each may be reasonable diligence, which, of course, is the specific question in each such case, but rather in a pronouncement of some guiding principles for determining due diligence.

The exercise of judgment in the matter of whether an affidavit for the publication of summons shows due and and reasonable diligence is one of the really important functions which a judge exercises. And he should be firm in rejecting an affidavit which is doubtful. It is difficult judging from my experience for a judge in chambers when a matter is presented ex parte not to succumb to the entreaties of ingratiating counsel. On it may depend whether defendants have their day in court on their property rights. By the same token the sufficiency of the affidavit which is the basis of the action by the judge (and throughout the opinion when I use the word “judge” I include “clerk” 1 and “court” because all three words are used in Section 104-5-12, U. C. A. 1948) is of great importance. The diligence to be pursued and shown by the affidavit is that which is reasonable under the circumstances and not all possible diligence which may be conceived. Nor is it that diligence which stops just short of the place where if it were continued might reasonably be expected to uncover an address or the fact of death of the person on whom service is sought. There have been cases where the plaintiff in an action to quiet title or in a divorce action was not untruthful in setting down details in the affidavit to show diligence; yet like a person who bustles with activity but accomplishes little, makes an imposing recital of non *428 productive diligence. Such type of “diligence” when probed may reveal a design to draw attention away from the fact that a further pursuit might result in an unwelcome disclosure of the actual address of the defendant. Due diligence must be tailored to fit the circumstances of each case. It is that diligence which is appropriate to accomplish the end sought and which is reasonably calculated to do so. If the end sought is the address of an out-of-state defendant it encompasses those steps most likely, under the circumstances, to accomplish that result.

Many times the value of the property involved is small but the work involved in an honest attempt to discover the address of the defendant, if living, or if dead, the names of the heirs, is considerable, and from a monetary standpoint the effort cannot be rewarded by the compensation it deserves because the traffic will not bear the charge conscientious service deserves. Such conscientious service partly unrewarded is one of the services the legal profession must contribute. When the property is valuable and clearing the title is a prerequisite to its mortgagability or construction of valuable buildings there is usually more money to pay for the search. There is a bedrock of reasonable diligence under the circumstances of any case which must be reached but in cases where the property involved is quite valuable, the plaintiff will want to make efforts well beyond the bare minimum required to obtain the judicial approval of the affidavit of due diligence. The test in any case is not utter diligence but reasonable or due diligence for no one should take the risk of a bare minimum because it would not be known what the bare minimum would be which would satisfy the judge. For the judge himself would not only want to satisfy himself but be satisfied that this court on appeal would conclude that he had shown proper judgment, and if the case never reached this court, it would be somewhat embarrassing if after publication ■had been ordered and judgment on constructive service rendered, the owner should appear and show that he had *429 received no notice of the action but that his address could have easily been ascertained had a trifle of ingenuity been exercised as a part of diligence. So much by way of introduction.

Section 104-5-12, U. C. A. 1943, encompasses five classes of defendants on which service of summons may in proper types of actions be made by publication. (1) Persons who reside out of the state; (2) Persons who have departed from the state; (3) Persons who conceal themselves to avoid service of summons; (4) Persons who cannot after due diligence be found in the state; and (5) In actions in rem where the person or persons are unknown.

The class of “persons who cannot after due diligence be found in the state” excludes those whom it is definitely known reside out of the state, that is, class (1), and those whom it is definitely known reside in the state but have departed therefrom whether temporarily, permanently or semi-permanently, i. e. class (2). It includes those whose whereabouts are uncertain except that they cannot be found in the state. The first part of diligence then would be to determine that the defendant cannot be found in the state and the show of diligence should recite steps taken to ascertain that fact with at least a near certainty. But reducing the fact that the defendant cannot be found in the state to a near certainty does not complete the requirements. Section 104-5-13, U. C. A. 1943, provides that

“where the residence [of the defendant] is known, the clerk must forthwith deposit a copy of the summons and complaint in the post office, postage prepaid, directed to a person to he served at his place of residence.”

This section contemplates not only reaching a state of near certainty of not knowing the residence of an out of state defendant, but of pursuing diligence further in an effort to ascertain the residence. This necessarily includes ascertaining whether he resides anywhere, that is, whether he is alive or dead. And the trail may start by first ascertaining *430 whether the defendant resides in the state and if so, when he departed, i. e. first reducing it to a class (2) case and proceeding from that point of vantage. In fact, a diligent search to determine these facts may result in reducing the affidavit to a statement under oath of the ultimate fact of the actual present residence of the defendant as out of the state, giving the out of state address. Thus the problem would be reduced to a class (1) case with address ascertained. In such case it would seem unnecessary to recite the steps which had been taken to ascertain the out of state address unless it were to demonstrate that such fact was reliable. And if the search yielded the actual address of the defendant he could be personally served and thus if such were chosen rather than publication, the affidavit, order, publication and mailing could all be dispensed with. Ricks v. Wade, Judge, 97 Utah 402 , 93 P. 2d 479 . Only in the case where search has not yielded the present address or whereabouts of the defendant or the fact of whether the party is alive or dead, or if dead, the names of his heirs, would it then seem necessary to set out steps taken to show the diligence used. The ultimate desideratum is to find a present address so that the clerk may send a copy of the summons and complaint to the defendant and thus reduce to at least a near certainty that he may receive timely notice of the suit. The affidavit of facts which is to reveal the diligence employed, on which the judge must act according to Section 104-5-12, U. C. A. 1943, should therefore show not only due diligence as to the ascertainment of the fact that the defendant on which summons is to be served is absent from the state, but as to the attempt made to find out his present address which would usually also result in ascertaining the fact of whether he was alive or dead.

Ordinarily, no definite steps or acts can be set down as necessary to be included in the affidavit.

A review court may not lay down rules as to the amount of diligence required in any case except that it may be said *431 that mere conclusions without showing what was done to reach such conclusion is not sufficient and also that mere perfunctory acts to support the conclusion of due diligence are not sufficient. Common sense under the circumstances and a regard for the rights of the defendant should largely govern. The golden rule may also serve as a guide. The admonition should be: Exercise the same diligence to find the defendant as you expect him to if he were the plaintiff and you the defendant.

In actions to quiet title based on tax sales where the record owner has been in default for a long time and there is, as in this case, no record that he has manifested any interest in the property, it would seem that the plaintiff might meet the requirement of due diligence by the steps taken in this case. If the tax records of the period up to the time an auditor’s deed was issued, or a fortiori of the records up to the time the county quit-claimed the property, showed an address of the purported or erstwhile payer of taxes to which address tax notices had been sent in envelopes with an outside return address, and the notices had not been returned marked undelivered, or if the records in the County Recorder’s office showed an address of the supposed owner or interested party, this would be an indication that such interested or erstwhile interested party, still lived at that address, and if the plaintiff then sent a letter to such address and it was never returned by the post office serving that address, it would be some indication that the party still lived there but was uninterested in the property. While I think it would be well for the plaintiff to check on failure to receive a reply or notice of non-delivery by writing to the chief of police, sheriff or postmaster of the community, if permitted to give out information, serving that address specially if it were a small town or country community, and if a larger town or city possessing a city directory, to consult such directory either directly or through correspondence with a Chamber of Commerce or appropriate public official, I am not pre *432 pared to hold that failure to show such latter steps in the affidavit of diligence would require the judge passing on the same to disapprove the application for publication.

But it should be noted that evidence of a tax debtor’s apparent disinterest in his property by failing to respond to a tax obligation is only an element and perhaps not a very reliable one at that. Take for example, the cases where a geological probability of discovering oil or minerals arouses a new and keen interest in previously neglected property. In the scramble to procure tax titles and follow with quiet title suits, plaintiffs have been known not to be anxious to give the supposedly indifferent owner the opportunity he should have to pull back his property with the slender string by which he holds it. But that string cannot be cut except by summons supported by a showing of due diligence.

The statute leaves to the judge who must act on the affidavit the matter of determining whether he is satisfied with the diligence shown but it is like many other matters of discretion not an uncontrolled decision. Important rights are to be decided in the suit. It is important that the defendant have a chance to defend; hence it is important that he be served and for that reason that reasonably diligent efforts be made to locate him so that he may be served.

If the judge found to his satisfaction that a named defendant was absent from the state merely on the showing that the sheriff of the county wherein the plaintiff resided had made a return that after due diligence and inquiry the defendant could not by said sheriff be found in the state without reciting the diligence used, it would not in law be sufficient. Liebhart v. Lawrence, 40 Utah 243 , 120 P. 215 . Nor do I think it would be sufficient if the showing was that the plaintiff consulted the city directory or telephone directory where there was no showing that the defendant ever lived in the city, or if he lived therein, as to the period of his residence. Absence from the state is a negative fact and proof of it presupposes diligence in show *433 ing either that (1) the party never resided in the state, or that if he did, he had departed; and (2) if he never lived here, or had lived here and departed, where his residence really is at the time service of summons is to be had on him.

The judge passing on the affidavit should read the recital of the steps taken to locate known or unknown defendants and in the light of those recitals determine by his imagination applied to the known facts what other steps might in addition reasonably have been taken to still further pursue the hunt, and then determine from the comparison with all steps which might have been taken, whether under the circumstances of the situation the plaintiff had reached the point of reasonable diligence. For it must be realized that this is the type of case, like many other situations in the law, where a proper compromise point must be reached. On the one side is the interest or possible interest of the defendant and the necessity to endeavor to give him his day in court to preserve such interest. On the other side is the realization that property must be dealt with either by taxation authorities or in the channels of trade or as social assets. Property cannot be insulated from the exigencies of human progress or human society. It does not exist in vacuo or in isolation, nor is it to be statically frozen. And there is a point at which a reasonable mind would conclude that profitable results would only remotely be a possibility or that any further pursuit would be impracticable or unreasonable.

In view of the difficulty in finding the compromise point, I would think it well for the plaintiff, if he is confronted with a doubt as to whether he has used reasonable diligence to go the “second mile” in tracing the whereabouts of defendants or determine whether they are with the quick or the dead, rather than to resolve the doubt by not going far enough, for in this type of case not only must the trial judge pass on the affidavit, but this court must be able to say that there was no failure or abuse in the discretion *434 of the trial judge. When discretion is to be exercised at the very threshhold of the case on the important question of whether enough diligence is shown to permit service by publication rather than personal service out of the state, it is well to err on the side of too much than on the side of too little.

Above, I have attempted to enunciate a policy which should guide one whose duty it is to exercise due diligence in cases involving summons by publication and have suggested some concrete steps in the quest to find the address of an out-of-state defendant or to determine whether living or not. But each case must stand on its own facts and on the circumstances involved in the situation at the time service by publication is sought. I concur because in this case I cannot say that the finding by the trial judge that the plaintiff in the action to quiet title had shown in his affidavit for publication reasonable diligence was unreasonable.

Personally, I think this judicial function far too important to be left to a layman who lacks not only j'udicial experience but is untutored in the law.