22 Colo. App. 605 | Colo. Ct. App. | 1912
This is an action in the nature of ejectment, under § 265, Mills’ Annotated Code, and is similar in its main features to a number of other cases decided at this term of the court, in each of ■which the same company appears as appellant, each case involving the question of the validity of tax titles to land located in Washington county. Complaint is in usual form, and the answer, after putting in issue the allegations of the complaint, purports to plead title in defendant by virtue of the payment for seven successive years of all taxes assessed upon the land under claim and color of title in good faith, the land being vacant and unoccupied, basing this plea on § 4090, revised statutes. There are two assignments of error relied upon in this case, either of which
“Whereas the treasurer of said county did, by virtue of authority vested in him by law, at a tax sale, the tax sale publicly held on the 19th day of October, A. 13. 1897, severally expose to public sale, at the office of the county treasurer, in the county aforesaid, in substantial conformity with the requirements of the statute. * * *
“Whereas no bid was made or offered by any person at said sale for any of the lands * * * and particularly for the said above described real property or any part of it, and said treasurer having-passed said real property over for the time, did re-offer it until the last day of the sale he became satisfied that no more sales of said real property, and particularly the real property herein specifically described, so offered, could be effected at such sale. Thereupon said treasurer did bid off at said sale for and in the name of said county of Washington the lands, ’ ’ etc.
It will be noticed here that only one date is mentioned in the deed upon which the property was offered for public sale, namely October 19th, and that the county purchased it that day. It is clearly pro
The next assignment, number five, questions the ruling of the ■ trial court in admitting in evidence, over defendant’s objection, certified copy of the complaint, summons and affidavit for publication in cases numbered 607 and 562, county court of Washington county, wherein, in the former, appellant was plaintiff and appellee et al were defendants, and in the latter appellant was plaintiff and appellee was defendant. The two decrees in these cases were ad
“Service by publication shall be allowed only after summons issued and return thereon made that the defendant after diligent search cannot be found. * * *
“After return is made as aforesaid * * * the plaintiff, or one of the plaintiffs, may file in the office of the proper clerk an affidavit stating that the defendant resides out of the state or has departed from the state without intention of returning or concealed himself to avoid service of process, and giving his postoffice address if known, or stating his post-office address is not known to affiant, whereupon the order of publication shall be made by the clerk. * *
“When the affidavit gives the postoffice address of the defendant the clerk shall mail a copy of the summons duly stamped, to the defendant at such address forthwith.”
The affidavit for publication made in this case states:
“The affiant, for the purpose of finding said defendant and ascertaining his place of residence, has made diligent inquiry of and among residents nearest said land and of the postmaster at Burdett, Colo., the postmaster nearest said land, and of the postmaster at Akron, Colo., and is informed and believes*610 is not now and does not reside in this state, and that his present place of residence is to affiant wholly unknown. ’ ’
We notice that the plaintiff in each of the county court cases was a corporation (appellant here), and that the affidavit purports to have been made by one August Muntzing, but whether or not he was attorney or proper agent of plaintiff does not appear from the abstract. It has been held time and again that where service by publication is relied upon to give jurisdiction over a non-resident the statutory requirements must be successively and accurately taken. O’Rear v. Lazarus, 8 Colo. 608; Beckett v. Cuenin, 15 Colo. 281; Brown v. Tucker, 7 Colo. 30.
No mention whatever is made in the affidavit as to the postoffice address of the defendant. This is one of the material recitals in an affidavit for publication of summons, and its omission renders a judgment or decree void for want of jurisdiction of the party in court by constructive service only, and such 'judgment may be attacked collaterally. The recital in the affidavit to the effect that defendant’s place of residence is to affiant wholly unknown may be true in fact, and at the same time his postoffice address be fully within the knowledge of affiant. In other words, such recital is in no way equivalent to a statement that defendant’s postoffice address is at a certain place or that such address is unknown. In actions founded upon constructive service of summons the whole policy of the law is to lodge with the defendant, if possible, a summons which on its face notifies him of the attack upon his property rights and gives him timely notice to appear in the court and defend if he cares to do so. The law requires a sworn statement
The conclusions we have reached concerning the two assignments of error dispose of this appeal against appellant. The judgment is affirmed.
Affirmed.