Hauver v. Dorsey

Hsndsrson, J., delivered the opinion of the Court. This case presents a narrow question whether a failure to comply with the provisions of Maryland Rule 105 deprived the court below of jurisdiction to foreclose a tax lien under Code (1957), Art. 81, sec. 107. G. Edwin Johnston died on December 8, 1953, leaving a will wherein he devised the property known as 30 Burke Avenue, Towson, Maryland to the appellant Jeanne Hauver, but the will was not probated in Maryland. Real estate taxes being in arrears, the property was sold at a tax sale on December 1, 1958, and a certificate issued to the purchaser, J. M. Dorsey.

On June 9, 1960, the appellee filed a bill of complaint to foreclose the right of redemption. A writ of summons was issued addressed to G. Edwin Johnston, 400 Jones Daw Annex Building, Pittsburg, Pennsylvania, his last known address. The writ was returned “non est” by the sheriff, and a second writ was likewise returned “non est”. An order of publication was signed and duly published, and on July 8, 1960, a certifi ⁵⁰¹ cate filed.

No attack is made upon the publication itself. But no affidavit was filed in the case. The circuit court entered its decree on August 31, 1960, foreclosing the rights of redemption of G. Edwin Johnston. On September 26, 1961, the appellant filed her petition asking that the decree be set aside.

A demurrer to the petition was sustained. This appeal is from an order dismissing the petition. Code (1957), Art. 81, sec. 107 provides in part: “At the same time the subpoena is issued in accordance with the provisions of § 106, the court shall order the issuance of an order of publication directed to all parties defendant, known and unknown, naming the known parties defendant and including the unknown parties defendant and all other persons having an interest in the property by the designations hereinbefore provided for. The order of publication shall issue in the manner now, or which may be hereafter prescribed by law, for the issuance of an order of publication against nonresidents except as otherwise provided for in this subtitle, and shall be published and the publication thereof proved as in cases of orders of publication against nonresidents.

This section was last enacted by chapter 420 of the Acts of 1945. Under the statute then in effect (Code (1951), Art. 16, sec. 160), the practice did not require the filing of any affidavit. However, this section was repealed by chapter 399, sec. 1, of the Acts of 1957, and publication against nonresidents was thereafter covered by Maryland Rule 105, approved in substantially its present form to take effect on January 1, 1957. Cf.

Richardson v. Richardson, 217 Md. 316, 319 . Subsection g of Rule 105 provides in part: “Where notice by publication alone has been given, because the residence or whereabouts of the defendant is unknown, no interlocutory or final judgment for the plaintiff shall be given until proof is made by affidavit to the satisfaction of the court that rea ⁵⁰² sonable efforts to locate the defendant and to warn him of the pendency of the action, have been made. The failure of the plaintiff to make such reasonable effort in good faith, and to offer proof thereof, shall be ground for the postponement or denial of the entry of a decree pro confesso, judgment by default or a final judgment. * * An editor’s note indicates that the subsection was new, derived in part from General Equity Rule 10A, which applied only to suits for divorce and annulment. See Graham v. Graham, 190 Md. 434, 448 .

A note to subsection e states that the requirement of notice by registered mail, where the residence of a person is known, was also new, and an extension of the former practice under General Equity Rule 10A “to in rem pro-' ceedings at law and in equity.” We think it was the purpose and effect of the language of Art. 81, sec. 107, above quoted, to adopt whatever is the current legal procedure in regard to publication against nonresidents. The Rules of this Court, of course, have the force of law, replacing inconsistent legislative provisions, subject only to the power of the Legislature to provide otherwise. Here The Legislature expressly repealed the procedure set up in ■former section 160 of Article 16 of the 1951 Code. We find mo intention that the procedure formerly applicable to the foreclosure of tax sales should be preserved.

Exceptions to ■■the new procedure were spelled out in subsection i of Rule .105, and there is no reference here to tax sales. See also Rule 1000. The appellee argues that because Rule BS 40 provides • that “'[tjhe procedure for tax sales shall be in accordance with 'Code, Article 81, Sections 70 to 123”, there was no intention ■.to change the former procedure. This argument overlooks the language of section 107 that “[t]he order of publication shall Issue in the manner now, or which may be hereafter prescribed iby law, * * See In re Guenthoer’s Estate, 83 Atl. 617 (Pa.), and annotation in 168 A.L.R. 627 .

We think Rule 105 is applicable. Code (1957), Art. 81, sec. 112 provides in part: ⁵⁰³ “At the expiration of the time limited in the order of publication, and in the subpoena, the court shall pass its decree in the proceedings, in accordance with the general equity jurisdiction and practice of the said court. The decree shall be final and conclusive upon the defendants, their heirs, devisees and personal