158 Iowa 306 | Iowa | 1912
The plaintiff herein was a resident of Minnesota, and owed the defendants herein, who were residents of Allamakee county, Iowa. The defendant Brady brought a suit in attachment against Manion, and had a levy made on land in Allamakee county, in which Manion owned an equity and to which he held title. Brady obtained a judgment, and the land was sold under execution to satisfy the same; the defendant Hart finally becoming the owner thereof under sheriff’s deed. The only notice of suit was by publication. The appellant contends that the statute authorizing such service was not strictly complied with, and because thereof the court was without jurisdiction to render the judgment under which his land was .sold. Two specific objections are made to the jurisdiction of the trial court in connection with the question of notice. The first is that no affidavit was filed that personal service could not be made on the defendant within this state; and the second, that proof of the publication of the notice was not made as required by the statute. Within the time required by law there was filed in the case a paper, which
I, "William S. Iiart, being first duly sworn on oath, say that I am the attorney for the.plaintiff in the above-entitled action; that the defendant is a nonresident of the state of Iowa, and service of the original notice in the said action cannot be made personally upon the defendant in the state of Iowa. [Signed] Wm. S. Hart.
Subscribed and sworn to before me by the said William S. Hart this 31st day of July, 1901. -, Clerk Dist. Court.
Plaintiff respectfully designates the New Albin Globe, a newspaper published in Allamakee county, Iowa, as the medium which he desires to have designated for the publication of the original notice in this action. [Signed] Wm. S. Hart, Attorney for Plaintiff.
"Upon reading the foregoing affidavit, it is hereby ordered that publication be made in the paper above designated by plaintiff’s attorney. [Signed] J. C. Ludeking, Dep. Clerk Dist. Court.
The appellant urges that this paper was not an affidavit, for the reason that it does not appear to have been sworn to, and that it amounted to no more than a declaration made in the form of a certificate. On the other hand, the appellees contend that the paper itself shows that it was sworn to, and further, was in fact .sworn to, and, having been duly filed, was in fact and in law the affidavit that the law requires, notwithstanding irregularity in the jurat. On the trial, it was shown that Mr. Hart did in fact swear to the body of the paper, and that the signature of the officer was placed below the direction for publication through inadvertence or mistake.
II: The notice was published in a newspaper published in New Albin, Allamakee county, Iowa, called the New Albin Globe, and the following affidavit of such publication was made:
I, H. J. Metcalf, publisher of the Globe, a weekly newspaper published in the city of New Albin, in said county and state, do solemnly swear that the advertisement (a copy of which is hereto annexed) was published in said paper 4 consecutive weeks, the first insertion being on the 7th day of August, A. D. 1901, and the last on the 28th day of August, A. D. 1901. M. J. Metcalf, Publisher.
Subscribed and sworn to by. Geo. W. Metcalf, before me, a notary public of the state of Iowa, in and for Allamakee county, this 27th day of August, 1901. Witness my hand and notarial seal. [Signed] L. Ferris, Notary Public. [Seal.]
The-record must show that the statutory requirements as to notice have been complied with, and parol testimony to show matters that should appear of record is inadmissible. Schaller & Son v. Marker, supra; Bradley v. Jamison, 46 Iowa, 68; Bardsley v. Hines, 33 Iowa, 159; Mortgage Co. v. Beechley, supra; Maynes v. Brockway, 55 Iowa, 460. The affidavit of publication is fatally defective in two or more respects, and, under the rule that the statute must be literally complied with to confer jurisdiction by publication of the notice, it is clear that the court had no jurisdiction to render the judgment in question.
The appellee contends that the plaintiff is not the real party in interest, and hence cannot maintain this suit. No