61 P. 412 | Kan. | 1900
It is contended by counsel for plaintiff in error that since the enactment of chapter 107 of the Laws of 1889 there has been no statute in force in this state authorizing service by publication. This claim is based upon the fact that sections 1 and 2 of that act do not refer to the chapter of the General Statutes of 1868 which they purport to amend. Section 1 begins as follows : “Section 1. That section 72 of the General Statutes of 1868 be and the same is hereby amended so that the same shall read as follows.” Then follow provisions prescribing in what cases service by publication may be had, etc. Section 2 begins : “Sec. 2. That section 73 of the General.Statutes of 1868 be and the same is hereby amended so that the same shall read as follows.” Then follows the requirement concerning the affidavit for publication and what it shall contain.
Chapter 80 of the General Statutes of 1868 relates to civil procedure. That it was the purpose of the legislature, by the act of 1889, to amend said chapter 80 of the General Statutes of 1868 appears to us clear. The title of said chapter 107 of the Laws of 1889 reads as follows :
-“An act relating to the code of civil procedure, and amendatory of sections 72 and 73, and 643, 644, and 646 and 647 of chapter 80 of the General Statutes of 1868.”
Again, section 9 of the same act reads: “Sec. 9. Original sections 72 and 73 of chapter 80 of the General Statutes of 1868 . . . are hereby repealed.” Thus the title to the act and section 9 thereof expressly mentioned chapter .80 of the General Statutes of 1868 as being amended and repealed. The lang-uage of the
The omission of the words “chapter 80,” in sections 1 and 2 of chapter 107 of the Laws of 1889, constitutes the sole ground of attack on the law. The objection is technical in a high degree, and hardly worthy of the extended comment we have made on it. In Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753, it was said:
“The cases in which the courts have been called upon to supply evident legislative omissions by the interpolation of words to complete the sense of the act, and thus harmonize it with the obvious legislative intent, are frequent.”
The affidavit for service by publication was not void for lack of venue. The strict rule laid down in early decisions has been greatly modified and relaxed. In Proffatt on Notaries, section 66 (2d ed.), it is said:
“It is presumed, when no venue is stated, that the affidavit was taken within the jurisdiction of the officer taking the affidavit. So it is held, that the absence of a venue is not fatal to an affidavit, for the important thing is, that it shall appear that the oath was administered by a person authorized to administer the same ; and the omission to state the venue may be aided, when the affidavit is offered to be used in legal proceedings, by the presumption that the officer acted within his jurisdiction, and on a prosecution for perjury, by proof extrinsic to the paper.” (See, also, Feavis v. Cowell, 56 Cal. 588; Young v. Young, 18 Minn. 90.)
An attack is made on the judgment in the second suit, brought on September 13, 1893, by the Farm Land Mortgage and Debenture Company against C. J. Baker, wherein all his rights under the deed from C.
Again, the court found:
“The deed from C. W. Smith to C. J. Baker was not recorded until seven months and eighteen days after the judgment in said suit No. 7715 was rendered, and was recorded pending the publication of the sheriff’s notice of sale, and only fourteen days before said sale.”
Neither C. W. Smith nor plaintiff in error was ever in possession of the land. Baker, therefore, was a purchaser pendente lite and could obtain no greater rights than his grantor, whose interest in the property had been terminated and cut off by the decree in the foreclosure action. (Smith v. Worster, 59 Kan. 640, 54 Pac. 676.)
There was no error in the proceedings, and the judgment of the court below will be affirmed.
