Appeal from the Circuit Court for Baltimore County; Raine, J.
Henderson, Hammond, Prescott, Marbury and Sybert, JJ. Henderson, 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 Law 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 certificate
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 reasonable
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 ...