State Ex Rel. Moore v. O'Bannon

1938 OK 148, 77 P.2d 70, 182 Okla. 173, 1938 Okla. LEXIS 93

• Court: Supreme Court of Oklahoma
• Decided: March 1, 1938
• Docket: No. 27811.
• Status: Published

Opinions

GIBSON, J.

This is an original action commenced by the state on relation of E. H. Moore for writ of mandamus directing S. L. O’Bannon, as district judge of Okmul-gee county, to approve service by publication had in an action to quiet title filed in that court.

The petition in district court named as defendants “the heirs, executors, administrators, devisees, trustees and assigns, immediate and remote,” of Amster Sugar, deceased. The action was instituted pursuant to chapter 261, S. L. 1919 (secs. 13S6-1390, O. S. 1931), providing for such actions against unknown claimants as above' designated, and for service upon them by publication where three or more years have elapsed since the death of the owner of the land and no decree of the proper county court determining his heirs has been entered. The petitioner here, plaintiff in the lower court, in attempting service by publication, proceeded in strict conformity with the provisions of said chapter 261. Sections 4 and 5 thereof, now sections 1389, 1390, O. S. 1931, provide the means by which service may be obtained. Section 4 contains the provision for publication and section 5 provides for completion of service upon filing the publisher’s proof of publication. Section 4 reads as follows:

“When such petition is filed, the party may without more, proceed to make service by publication upon such defendants, in the manner following: The publication notice must, in such ease, be addressed in terms, to ‘The heirs, executors, administrators, devisees, trustees and assigns, immediate and remote of _ deceased’ (naming- such deceased person). It shall be issued over the official signature of the clerk of the court; shall state the court in which the petition is filed, the name of the plaintiff, the above description of such defendants, and must notify the defendants thus described that they have been sued and must answer the petition filed by the plaintiff, on or before a time to be stated (which shall not be less than forty-one days from the date of the first publication), or the petition will be taken as true, and judgment, the nature of which shall be stated, will be rendered accordingly. The publication must be made three consecutive weeks in some newspaper authorized by law to publish notices in legal proceedings, printed in the county where the petition is» filed, if there be any printed in such county, and if there be not, then in some newspaper printed in this state of general circulation in that county. A copy of the publication notice, with a copy of the petition (without exhibits), shall, within sixty days after the first publication of the notice is made, be enclosed in an envelope and addressed to each of such devisees, grantees, or heirs at law, as are named in the petition, or his place of residence, postage prepaid, and deposited in the nearest post office, unless such place of residence is unknown to the plaintiff.”

Although the plaintiff below followed the statute to the letter, the respondent refused to approve the service by publication and proceed with the trial of the cause. There is no claim that proof of service as required by section 1390 was not made, nor is there any claim or appearance of untruth in the affidavits filed pursuant to the requirements of said section of the statute. We assume that such affidavits are true.

Respondent contends that service by publication was incomplete and void by reason of plaintiffs failure to file the prepublication affidavit and attach same to his petition, as required by sections 184 and 190, O. S. 1931.

Petitioner says that the action in district court is clearly of that class of cases authorized by said chapter 261, supra; that said chapter is a special statute and sections 184 and 190 are general in their application. Under such conditions, he contends the special statute controls over the general statute as to procedure. Gardner v. School District, 34 Okla. 716, 126 P. 1018; Muskogee Times-Democrat v. Board of Commissioners, 76 Okla. 188, 184 P. 691; Oklahoma Natural Gas Co. v. McFarland, 143 Okla. 252, 288 P. 468.

Chapter 261 was enacted for the primary purpose of dealing with a particular subject: quieting title to lands belonging to decedents whose heirs had not been determined by the county court within three years subsequent to death, or where grants named heirs or legal representatives, unknown. Under such circumstances the special statute providing for rules of procedure supersedes a general statute which may not refer to the particular subject although broad enough in its terms to include it. The rule applied in the cases last above cited is as follows:

“Where there are two provisions of the statutes, one of which is special and particular and clearly includes the matter in controversy, and where the special statute covering the subject prescribes different rules and procedure from those in the general statute, it will be held that the special statute applies to the subject matter, and that the general statute does not apply.”

The action in district court seeks to quiet title to the allotment of a full-blood Greek Indian whose heirs had not been determined by a county court within three years subsequent to the death of said allottee. By reason of this fact, no doubt, the parties in their brief discuss the provisions of the Act of Congress of June 14, 1918, section 375', title 25, Ü. S. O. A., giving county courts jurisdiction to determine the heirs in such cases. Chapter 261, however, does not purport to have been enacted pursuant to or in furtherance of the provisions of the aforesaid act of Congress. Said section 375 does not attempt to confer upon district courts the authority to determine heirs of a deceased restricted Indian, Chapter 261 affords a means of procedure in specific cases for the foreclosing of claims of unknown parties to lands of deceased persons. The method of obtaining service upon such parties is fully set out in the chapter, and is intended to apply to all such unknown parties, whether they be restricted Indians or other citizens. The only question for our determination is whether the affidavit mentioned in sections 184 and 190 is necessary to a valid service. That question we decide in the negative. Whether the district court may obtain jurisdiction of Indian heirs of a deceased full-blood Indian, member of the Five Civilized Tribes, in an action to quiet title, is not here decided. The district court did not refuse to approve the service and proceed with the trial on that ground, and therefore the question is not properly presented to us in this proceeding.

The writ is granted, and the respondent is ordered to approve the service as made and to proceed with the trial of the cause.

OSBORN, C. J., BAYLESS, V. C. J., and RILEY, CORN, HURST, and DAYISON, JJ., concur. WELCH, J., absent. PHELPS, J., dissents.