Davis v. Huston, 15 Neb. 28

Davis v. Huston

15 Neb. 28 | Neb. | 1883

Cobb, J.

The point is made for the plaintiffs in error that the service of process in the foreclosure case was not sufficient to bind the infant defendants, for the reason, as I understand it, that the affidavit for service by publication fails to show that the guardians of the infant defendants were non-residents of this state, or that service on them could not be made in this state* and it is urged in the brief that “there is always a presumption that when a minor has property and rights he has a guardian to protect such property and rights.” If there is such a presumption, it certainly cannot prevail against the superior presumption that the surviving parent is the guardian of an infant, or that the infant would be domiciled in the same state with its guardian. Indeed, in the absence of authority, I am unable to admit the existence of a presumption that an infant who has inherited land in several different states has a guardian in each state to protect such property. The deposition of the plaintiff, Elizabeth J. Davis, ,one of the defendants in the the foreclosure suit, shows clearly that at the date of the taking thereof, to-wit, the twenty-eighth day of May, 1883, she was a resident of the state of Missouri, and that the other defendants are her sons and daughters. She -was not interrogated as to Avhen she became a resident of the state of Missouri. Her deposition, then, taken in connection with the affidavit of non-residence of the defendants made by the plaintiff in the foreclosure suit, raises the presumption that all of the defendants were non-residents of the state of Nebraska at the time of the commencement of the foreclosure suit. And that the infant defendants, all but one of whom were then under the age of fourteen years, were then residing with and under the natural guardianage of their *31mother — their father being then dead, and they cannot be-presumed to have then had any lawfully appointed guardian, certainly not within the state of Nebraska. The case-of Keys v. McDonald, 1 Handy, 287, cited to this point by counsel for plaintiffs in error, was where the summons was-personally served,-of course within the jurisdiction of the-court, upon the defendant, who was stated in the petition to be a minor under the age of fourteen years. Such defendant being found within the jurisdiction, there was a. presumption to be negatived that there was a father, mother, guardian, or other person having the care of such infant or with whom he lived, also within the jurisdiction, who also might be served. But not so in the case at bar.

The second point presented is, that by the terms of the-notice the defendants in the foreclosure suit were not allowed the statutory time in which to answer the petition off the plaintiff therein. The statute [sec. 110, p. 545, Comp. Staff] provides as follows: “The answer or demurrer off the defendant shall be filed on or before the third Monday * * * after the return day of the summons or-service by publication.” Sec. 79, p. 540, provides that: “ The publication must be made four consecutive weeks in some newspaper * * * .” While I do not find any-case in which this language has been construed by this-court, or indeed by a court of last resort in any state, yet it is well known to the profession that it has uniformly been understood in this state, the same as though the language were that the notice should be printed or inserted in a weekly newspaper once in each week for four weeks successively, etc., and that the publication is deemed complete upon the distribution of the newspaper containing its fourth successive weekly insertion. Such has been my own observation, and I am informed has been that of my two associates on the bench, each of whom has long presided at the circuit and been familiar with the rulings of our courts-as well in territorial times as during the existence of our *32¡state government. Such construction having been uniformly placed upon the statute in question, it has become .a rule of property in this state, and must be adhered to.

Upon the last point raised by the plaintiff in error, to-•wit: that the sheriff’s deed, having been acknowledged before the county clerk, should not have been admitted in ^evidence, I will only say, that, by an act of the legislature, ¡approved February 24,1883, Laws, 181, all acknowledgments heretofore taken by county clerks and their deputies ¡are declared to be legal and valid. No reason is suggested ■why this law should not be deemed valid or have the effect to validate the deed in question, however faulty its ac.knowledgment under the law as it formerly stood.

The judgment of the district court is affirmed.

JUDGMENT AFFIRMED.

'The other judges concur.