Harris v. Claflin, 36 Kan. 543

Harris v. Claflin

36 Kan. 543 | Kan. | 1887

*550The opinion of the court was delivered by

Horton, C. J.:

This was an action for the recovery of real property. Lee M. Clark was the patentee of the land, and both parties to the action claim title from him. The plaintiff claims under a deed executed by Clark, August 28,1884, and recorded August 30,1884. The defendant claims title under the foreclosure of a mortgage executed by Clark to John W. Brown, and assigned by Brown to N. P. Case. At the sale of the land under the foreclosure of the mortgage, A. H. Case and N. P. Case purchased the same. On February 26, 1863, N. P. Case and wife and A. H. Case and wife executed warranty deeds of the land to the defendant. Lee M. Clark paid all the taxes assessed on the land prior to and including those for 1865. The defendant paid all the taxes on the land from 1866 to 1883, inclusive. This action was commenced November 15, 1884. At the time of the sale of the land under the decree of foreclosure on May 22,1862, the land was worth $125. At the time of the commencement of this action the land was worth $10 per acre. Clark never took actual possession of the land, but in September, 1884, plaintiff claimed to have obtained possession thereof. In October, 1884, the defendant built a post-and-barbed-wire fence around the land, and took actual possession thereof. The principal question presented is, as to the jurisdiction of Clark by the court rendering the judgment of foreclosure and sale. The service of the summons, in the action for the foreclosure of the mortgage, was by publication in a newspaper. The defendant, Lee M. Clark, was never personally served and never made any appearance. The plaintiff, in his case, claims that the service by publication in the foreclosure case was void, and therefore that the court rendering the judgment never obtained any jurisdiction of Clark, and that the judgment in the case, and all proceedings under it, including the sheriff’s deed to N. P. Case and A. H. Case, the creditors of the defendant, are void.

The affidavit for publication was filed June 5, 1861, but *551omitted to state “that the case is one of those mentioned in the preceding section.” (Civil Code, §§ 72, 73.) Within the authority of Shields v. Miller, 9 Kas. 390, the affidavit is fatally defective, and therefore the attempted service by publication a nullity. Without a valid service in such a case, every subsequent proceeding, including the judgment, the execution or order of sale, the sale and the deed must necessarily be void. The rule is: If there is a total want of evidence upon a vital point in the affidavit, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable. (Pierce v. Butters, 21 Kas. 124; Atkins v. Atkins, 9 Neb. 191; Ogden v. Walters, 12 Kas. 282; Claypoole v. Houston, 12 id. 324; Frazier v. Miles, 10 Neb. 109; McGavock v. Pollack, 13 id. 538; Holmes v. Holmes, 15 id. 615.)

The defendant cites the case of Pierce v. Butters, supra, in support of his claim, that even if the affidavit for publication is not sufficient to give the court jurisdiction, the court may examine the whole record; and if all the other proceedings are regular, then the court had jurisdiction. In Pierce v. Butters the affidavit was defective, but not void; and all the defects in the affidavit were cured by the filing of a new and amended affidavit. The amended affidavit was amply sufficient. That case is not in conflict with Shields v. Miller. The case of Deitrich v. Lang, 11 Kas. 643, is referred to under a misapprehension. The affidavit in that case states that—

“A petition had been filed against said Andrew B. Miller, defendant, praying that certain lands, situated in the city of Leavenworth, Leavenworth county, state of Kansas, may be decreed to be sold to satisfy a mortgage given by said Andrew B. Miller to the said Wm. H. Russel to secure the payment of a certain sum of money therein named; and that the said plaintiffs are now the legal owners of said note referred to.”

Only a portion of the affidavit for publication is recited in the opinion, but the affidavit is set forth at length in the record of the case.

*552Upon the findings of the trial court the judgment must be reversed, and the cause will be remanded, with direction that judgment be entered for the plaintiff.

Valentine, J., concurring. Johnston, J., dissenting.