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Greer v. Ludwick

SEPTEMBER 27, 1968.




Appeal from the Circuit Court of Gallatin County; the Hon. ROY O. GULLEY, Judge, presiding. Reversed and remanded with directions.


Plaintiffs filed their unverified complaint in February 1965, alleging that in 1961 certain of them had executed and delivered certain leases for oil and gas to defendant Petromin Corporation, and that by assignment some of the defendants, including the five (5) appellants herein, owned or claimed to be owners of record of the working interests and overriding royalty interests in the leases. The complaint further alleged that the primary terms of the leases had expired, that neither oil nor gas was being produced from the leased premises, and that no operations had been carried on since January 1964, and that the lessees and their successors, including appellants, had abandoned the leases and neglected to cause the same to be released of record. The complaint was based on the provisions of the statutes *fn1 although no reference is made to the statute in either the complaint or decree. Plaintiffs prayed for an order declaring the leases forfeited and ordered to be released of record and that certain of defendants including appellants be assessed all costs including reasonable attorney fees.

On the date of filing the complaint, an affidavit of non-residence of numerous defendants, including appellants, each of whom are nonresidents, was filed; publication was made and a certificate of mailing notice by publication was filed. Each of appellants received a copy of the published notice and each wrote to the clerk of the court. In substance each of the letters admitted ownership of fractional working interests in the leases and each letter expressed the writer's concern and denial of any intention to abandon such interests; certain of the letters refer to an "operator's agreement" and none of the letters mention defendants Helgen or Petromin Corporation by name. Each of the letters was filed by the clerk, before the default date, stated in the notice as being March 29, 1965. After the default date, on March 30, 1965, the clerk wrote each of appellants acknowledging receipt of his or her letter and informed each:

". . . that this is not sufficient as an answer in the above case. If you want to be represented in this matter you must get an attorney of record and file an answer to the same. The filing fee is $5.00 which must be paid when the answer is filed."

Defendants Helgen and Petromin Corporation were personally served with summons. *fn2 On March 24, 1965, an answer was filed on their behalf which asserted among other things:

"said Petromin Corporation being the operator of the leases described in said complaint, and under the operating agreement between defendant, Petromin Corporation and the other defendants named herein, Petromin Corporation being duly authorized to answer this suit on behalf of all of the defendants named herein who own working interests in the leases described in said complaint, this answer being on behalf of all of said working interests owners through Petromin Corporation."

None of the appellants, whom the complaint alleged to be owners of the working interests and overriding royalty interests in the leases, are designated by name in the answer. The answer is signed "Virgil I. Helgen, Petromin Corporation, as operator of said leases and Representative of all of the owners of working interests in said leases" by "Their Attorney."

Pursuant to notice given the attorney of record of Helgen and Petromin Corporation, the cause was set for trial and heard on July 6. None of these defendants-appellants received any notice of the setting and none of them were present in person or by attorney at the trial; neither was Helgen nor any other representative of Petromin Corporation. *fn3 The record is barren of any rule on defendants-appellants to answer or otherwise plead to the complaint, nor is there any showing the defendants-appellants were defaulted, although certain other defendants were defaulted for want of answer. On the same day the complaint was amended by interlineation; the amendment does not appear on the face of the complaint in the record, and the record is barren of any showing that defendants-appellants had notice of any proposal to amend or amendment. On the same day the court entered its decree on the amended complaint, in which are recited words to the effect that these defendants-appellants had answered, granting plaintiffs the relief prayed, declaring a pumping unit, casing, rods and tubing, and tanks used in connection with a formerly producing oil well on the premises, abandoned by the defendants, to be the sole property of one of plaintiffs, and decreeing judgment against the defendants jointly and severally, in the amount of $1,043 and costs.

A post-trial motion was filed by defendants Helgen, individually, and Petromin Corporation, and "defendants herein who are working interest owners" with certain defendants other than defendants-appellants, excepted, which recited "said Petromin Corporation being duly authorized to file this motion on behalf of the defendant working interest owners herein except those named." Again, the record is barren of any proof of service with respect to notice of the hearing on the post-trial motion, to anyone other than plaintiffs. Plaintiffs' attorney filed his personal counteraffidavit to the post-trial motion, serving a copy by mail on the law firm who had filed the post-trial motion. On September 21 the post-trial motion was heard, and a docket entry "Decree amended as to last paragraph. Otherwise, Post-trial motion denied" was made on that day. The last page of the decree shows a modification by interlineation excepting defendant Helgen personally, as a judgment debtor with respect to money judgment of $1,043 and costs.

Within two years of the entry of the decree, appellants filed their petition to vacate the decree verified by their attorney on information and belief and supported by the affirmative affidavit of Helgen. Appellants alleged therein that each of them had entered their appearance in their own proper person by their letters which had been filed by the clerk of the court and admitted receiving the letter of the clerk; that the answer of Helgen and Petromin purported to represent that by virtue of an operating agreement between the corporation and certain defendants, Petromin Corporation was authorized to answer the complaint on their behalf and that no copy of such operating agreement was annexed to the answer; that the law does not permit a corporation to engage in the practice of law, nor to act in any representative capacity as an attorney at law; that appellants had neither authorized nor ratified Petromin's attorney to enter their appearance or plead on their behalf; that appellants received no notice of the trial and were not represented by any attorney authorized to represent them; and that their property rights were disposed of without due process of law. In addition, their petition alleged that the decree, subsequent to its entry had been amended by interlineation which purported to be a correction or modification nunc pro tunc, and that the clerk had certified such decree which showed no such correction by modification or interlineation as was reflected on the decree on file with the court; that the docket entries did not support the correction or interlineation now reflected on the decree; and that the decree was not properly amended nunc pro tunc, and the decree was a nullity by reason of the interlineation.

Plaintiff then filed an unverified motion to strike the petition to vacate the decree and the affirmative affidavit in support thereof, in which it was alleged that the petition was insufficient, that petitioners were guilty of laches, alleged no valid or meritorious defense to the original complaint, and the inadequacy of the verification and affidavit to support the petition. Hearing was had on the motion to strike the petition to vacate; *fn4 the trial judge allowed the motion to strike and entered his order dismissing the petition to vacate the decree, from which said order, appellants appeal.

Appellants' theories on appeal are: (1) That because they had been served by publication and had filed their respective appearances pro se, and no rule to plead had been entered against them nor was any default taken against them, they were entitled to answer the complaint and to notice and an opportunity to be heard on the merits. Since they received no notice of the hearing on the complaint or on the post-trial motion, and since they had no opportunity to be heard on the merits of either, the decree and order entered by the trial court effectively deprived them of their property and property interests without procedural due process; and (2) That because the decree of July 6th, 1965, was amended on its face by interlineation at some time after it was entered, and because the docket minutes in support thereof do not describe with certainty the nature of the amendment, and because they had no notice of the hearing on the post-trial motion, and because the attempted modification prejudices them, the decree is, in these premises, a nullity.

Appellees in answer contend that the trial court properly dismissed the petition to vacate because although filed within two years it fails to comply with the other requirements of section 72 of the Civil Practice Act; urging the insufficiency of the verification on information and belief, and certain inconsistencies between the affirmative affidavit of Helgen and the record, and the failure ...

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