82 Kan. 435 | Kan. | 1910
The opinion of the court was delivered by
An action to quiet title was commenced in the district court of Kearny county, October 11, 1905, by John Aherne, who was in possession and
“Now, on this 24th day of October, 1905, this cause comes on for hearing upon the application of the plaintiff for an order for service by publication herein and presents to the court his petition against the above-named defendants, and also presents to the court an affidavit of said plaintiff showing that each and every one of the above-named defendants are necessary parties defendant in the above-entitled action and that the unknown heirs and devisees and the unknown administrators, excutors and trustees of all of said persons are necessary parties defendant in this action, which said affidavit sets forth the nature of the judgment wffich said plaintiff desires to have rendered against the said defendants and against the unknown heirs and devisees and the unknown administrators, executors and trustees of said defendants, and said affidavit also sets forth that the plaintiff has diligently endeavored to find the residence or place of abode of the said defendants, and each of them, and has endeavored to find whether or not the said defendants, or any of them, be alive. And also setting forth that said plaintiff has been unable to ascertain whether said defendants be alive, and the court, having inspected said affidavit, filed in the.office of the clerk of the district court of 'this county in said action, finds and- orders that the matters and things set forth in said affidavit*437 are true, and that the said affidavit is in due form and sets forth the facts required by statute.
“It is, therefore, by the court ordered that service by publication be made upon the said defendants and each of them, as though the said defendants and each of them were alive, and also in the alternative for service by publication upon the unknown heirs and devisees and the unknown administrators, executors and trustees of said defendants and each of them, and that said notice by publication be published in the Lakin Investigator, the same being a weekly newspaper printed and published in Kearny county, Kansas, and that the said notice shall be published not less than three consecutive weeks in such weekly newspaper, and that the date fixed for the answer of the defendants shall'be not less than forty-one (41) days from the date of the first publication; said notice of publication to be in conformity to section 2, chapter 326, Session Laws of 1905.
“It is further ordered and adjudged that the said notice of publication on such unknown heirs and devisees and the unknown administrators, executors and trustees of the said defendants be published and embraced in the said publication as the notice of publication on the other defendants herein.”
In the part of the affidavit which states the names of the defendants who were nonresidents of the state the names of A. C. Wilcox, and E. Heliker, trustee, were omitted. Publication was made as ordered by the court, the first publication being made October 27, 1905; the time for defendants to answer being on or before December 11, 1905. January 24, 1906, a decree was entered in favor of the plaintiff against all of the defendants, upon default. After the decree was entered the plaintiff sold the land to one M. L. Moore, who afterward conveyed it to W. H. Cramer. Both of these parties purchased in good faith, for a valuable consideration, and in reliance upon the decree.
On May 7, 1907, more than a year after the decree •had been rendered, the WaKeeny Land and Investment Company, as the owner and holder of-the note obtained from A. C. Wilcox, moved to have the decree opened and to be permitted to plead, under the provisions of
The law of 1905 prescribes the facts which the affidavit shall contain, and requires the court to inspect the same carefully and cause the truth thereof to be established and its form to be such as the law prescribes. When the court, with all the facts before it, adjudicates that the affidavit, both in form and substance, is in full compliance with the law, it may make an order directing that the defendants be notified by publication, prescribing the time such notice shall be
The question has lost much of its importance, however, since the action of the investment company (which holds the promissory note of defendant Mason, assigned to it by A. C. Wilcox, whose name was omitted from the plaintiff’s affidavit in naming the nonresident defendants) and of defendant W. H. Cramer (who claims to be a 'purchaser in good faith of the land in controversy under the decree). These parties caused the decree to be opened up under section 77 of the code, and obtained- permission to plead in the case. The investment company filed an answer and cross-petition asking for judgment upon its promissory note and a foreclosure of the trust deed. W. H. Cramer claimed to have purchased the land in good faith and in reliance upon the decree obtained by the plaintiff, Aherne, and prayed that he be protected under the provisions of section 77 of the code. The investment company by its reply challenged the jurisdiction of the court and denied the good faith of Cramer. Under these issues the sufficiency of the plaintiff’s affidavit was the chief question litigated. The court held the affidavit sufficient and refused any relief. From this judgment the investment company appeals to this court.
We are unable to see any material, error in the action of the court. The affidavit may have been irregular, but it was not void. The appellant is not in a very good position to complain, however, for its voluntary application to be let into the case and its filing an answer and cross-petition asking for a foreclosure of its
This disposes of the case. The other questions discussed, and there are several of them, need not be considered. The judgment of the district court is affirmed.