94 Neb. 515 | Neb. | 1913
This is an appeal from the judgment of the district court for Keya Paha county. The plaintiff, William D. Armstrong, alleges ownership of the land in controversy as grantee of the Muscatine Mortgage & Trust Company, and sues to redeem from a sale made under a decree of foreclosure of alleged tax liens. He claims that the deed made under the foreclosure proceedings is void for want of any notice to the Muscatine Mortgage & Trust Company or any appearance by it. The defendant had judgment. The publication notice was not directed to the defendant in the foreclosure proceeding, the Muscatine Mortgage & Trust Company. For a notice to be a good notice by which jurisdiction is acquired, it should address the defendant or defendants intended to be served. It may be that no particular form is necessary, but the defendant intended to be served should be directly addressed or the name should be included in the title of the case contained in the notice. The notice is addressed, “Notice to nonresident defendants,” without saying what are the names of the defendants. Nor does the notice read as such no-tie,es are sometimes made to read by publishing the title of the case at the head of the notice. Where that is done, and the names of the parties appear as plaintiffs and defendants, and the court is mentioned, it is apparent that the desire of the plaintiffs is to bring the defendants into court in the particular case mentioned.
Section 79 of the code as it existed at the time of the publication, and as it now exists, reads: “The publication must be made four consecutive weeks in some newspaper printed in the county where the petition is filed, if there be any printed in such county; and if there be not, in
Section 80 of the code as it existed when the publication was made, and as it still exists, reads: “Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in the preceding section; and such service shall be proved by the affidavit of the printer or his foreman or principal clerk, or other person knowing the same.” As the publication was not made in the manner prescribed by section 79, the proof by affidavit fails, and there is no basis upon Avhich to assume jurisdiction. This court has insisted on a strict compliance with the statute in cases of this character. It also has been inclined to place upon the statute such a liberal interpretation as its terms might warrant touching the right to redeem. Smith v. Carnahan, 83 Neb. 667.
In Pomeroy v. Betts, 31 Mo. 419, it is said: “An order of publication, where there are nonresident defendants; may be made by the court (or clerk, in vacation), upon an allegation in the petition or an affidavit, alleging the fact of such nonresidence, and directed to the nonresidents, notifying .them, etc.
“Where a statute directs the publication of a notice having reference to personal right or to property, the requirements of the statute are to be strictly pursued.” 29 Cyc. 1119, under the heading “By Publication.”
The judgment of the district court is reversed and that court directed to proceed in harmony with this opinion. The plaintiff should be allowed to redeem upon the payment into court for the benefit of the defendant of such sum as will pay the amount of the interest and taxes and value of improvements. Hayes County v. Wileman, 82 Neb. 669.
Reversed.