46 Kan. 571 | Kan. | 1891
The opinion of the court was delivered by
The United States issued a patent to the land in controversy to James McCamman on the 1st day of June, 1860, and the findings are to the effect that the plaintiffs are the owners by conveyances from McCamman, unless the judgment of October 9, 1861, of Reuben H. Earnham against James McCamman and the sale of the land thereunder divested McCamman of his title. When this case was here before, (Carey v. Reeves, 32 Kas. 718,) Mr. Justice Valentine, speaking for the court, said:
“When this affidavit [for publication service] was filed, is not shown. It is alleged that the action was commenced on January 17, 1861, and the affidavit shows that the petition was filed ‘on the — day of January, 1861;’ but there is nothing to show when the affidavit was in fact filed. If it was filed prior to January 29, 1861, the region of country known as ‘ Pike’s Peak,’ or a portion thereof, was in Kansas; but if the affidavit was filed after January 29, 1861, then such region was not in Kansas, and no part thereof was in Kansas. We suppose that when the plaintiffs in this action say that the foreclosure action was commenced on January 17, 1861, they mean that the petition was filed on that day. But when the service was made is not shown; nor is it shown when the judgment was rendered. It may have been in 1861, or in 1862, or in some subsequent year. We cannot say that the court below erred in deciding against the plaintiffs in this particular.”
At the last trial it was shown, and the court expressly found, that the affidavit for publication was filed on the 17th
The former decision of this court in this case, at its July term, 1884, (32 Kas. 718,) is not decisive nor controlling, because the facts now presented in the record are materially different from those which we considered at the time the former opinion was handed down. The affidavit for publication stated that the defendant, James McCamman, “has removed from the said county of Sha\jmee, and now resides in that region of country known as ‘Pike’s Peak,’ and that service of summons cannot be made on him within this territory.” At the time that Kansas was organized as a territory, its western boundary extended “ to the eastern boundary of the territory of Utah, on the summit of the Rocky Mountains.” We must take judicial notice of where “the region of country known as ‘Pike’s Peak’” existed on the 17th of January, 1861. (The State v. Teissedre, 30 Kas. 476; The State v. Baldwin, 36 id. 1; Railroad Company v. Burge, 40 id. 736.)
Lippincott’s Pronouncing Gazetteer of the World, (published in 1856,) referring to Kansas, said:
“It is a territory of the United States of America, formed by an act of congress passed May, 1854, lying between 37° and 40° north latitude, and between about 94° 30' and 107° west longitude. About 100 miles of the west portion lies between 38° and 40° north latitude. It is bounded on the north by Nebraska territory; east, by the states of Missouri and Arkansas; south, by Indian Territory and New Mexico; and west, by New Mexico and Utah. This territory is about 630 miles in length, from east to west, and 208 in its widest, and 139 in its west part, including an area of nearly 114,798 square miles. The Rocky Mountains separate it from Utah, and the Missouri river forms a small part of the northeast boundary.” .
“It is a territory of the United States, lying between latitude 37° and 40° north, and longitude 94° 40' and 106° 50' west, bounded north by the territory of Nebraska, east by the state of Missouri, south by the Indian Territory and New Mexico, and west by New Mexico and Utah. With the exception of the northeast corner of the territory, where the boundary line follows the irregular course of the Missouri river, its shape is that of a parallelogram as far west as longitude 103°. The boundary then follows this meridian north to latitude 38°, and runs west along that parallel to longitude 106° 50'; thence north to about latitude 39° 20', east to longitude 105° 40', and finally north again until it meets the Nebraska frontier. Length east and west, 550 miles; breadth, east of longitude 103°, 208 miles; west of that line, 139 miles; area, 114,798 square miles.”
The Encyclopaedia Britannica, (Vol. 23, p.796,) in describing the Rocky Mountains, says:
“Gray’s Peak(14,341 feet) is the highest point in this range, (the front, or Colorado range,) but, although on the continental divide, it is too far west to be visible from the plains. This divide, which separates the Atlantic waters from those of the Pacific, follows the front range as far as Gray’s Peak, where it is deflected westward for 20 miles to the Sawatch range, which it follows for about 75 miles. In this deflection the divide passes between the Middle and South parks, the lowest pass in this part being that called the ‘ Tennessee,’ (10,418 feet,) which leads from the head of the Arkansas to the Grand river branch of the Colorado.
“The Sawatch range is one of the highest and best-marked chains in the Rocky Mountains. It lies west of the head of the Arkansas; and its dominating peaks, along the whole range, exceed 14,000 feet. The most northerly of these, the Mountain of the Holy Cross, (14,176 feet,) was so named on account of the existence on its eastern flank of a large snow-field, lying in two ravines which intersect each other at right angles, in the form of a cross, and which in summer is conspicuously visible from a great distance. The highest point is Mount Harvard, (14,375 feet,) and the passes range from 12,000 to 13,000 feet. The continental divide follows the*580 Sawatch range to its southern end, in latitude 38° 20', and then runs in a south westernly direction for about 75 miles, over a high region without any distinctly-marked range. Here it turns, and, running southeasterly, follows the crest of the San Juan range, which at many points rises above 13,000 feet.”
Not only as a matter of fact is the summit of the Kooky Mountains (the western boundary of the territory of Kansas) a long distance west of Pike’s Peak, but it was so generally mentioned in the gazetteers, geographies and encyclopaedias in general use in 1861. Therefore, “the region of country known as ‘Pike’s Peak,”’ on the 17th of January, 1861, and until Kansas was admitted into the union, on January 29, 1861, was within the territory of Kansas, and generally known to be within the territory of Kansas. -The affidavit for service by publication showed upon its face that James McCamman had removed from the county of Shawnee, and resided “in the region of country known as ‘Pike’s Peak.’” That region was within, not without, the territory of Kansas at the date of the filing of this affidavit; therefore McCamman was not a non-resident of the territory of Kansas at the time the service by publication was made; therefore such publication was void — that is, it was invalid as a constructive service, because the affidavit for publication affirmatively showed that the defendant resided within the territory of Kansas, and it was not stated that he had departed from the territory or the county of his residence with the intent to delay or defraud his creditors, or to avoid the service of a summons, or to keep himself concealed.
It has already been decided by this court that it cannot be shown in a collateral attack that the affidavit for publication is untrue. (Ogden v. Walters, 12 Kas. 282; Rowe v. Palmer, 29 id. 337; Carey v. Reeves, 32 id. 718.) But that is not this case. In this case, the affidavit is insufficient upon its face. It does not state facts to authorize any publication service; therefore no personal or constructive service was ever had upon McCamman prior to the rendition of the
Upon the findings of fact the judgment must be reversed, and the cause remanded with direction to the district court to render judgment for the plaintiffs and against the defendants. This direction will not prevent the defendants from recovering any taxes paid by them, if any have been paid, while the land has been in controversy in any of the courts of this state. (Laws of 1876, ch. 34, §149; Gen. Stat. of 1889, ¶ 7004; Wood v. Gruble, 31 Kas. 69.)
