57 Kan. 275 | Kan. | 1896
On November 5, 1887, the plaintiff obtained a decree of divorce from the defendant and for the custody of children. The Court found that the defendant had been duly summoned by publication in The Wyandotte Herald, and that she was in default. No further proceedings were had in the case-until May 22, 1891, when the defendant filed a motion to set aside said decree as void on the ground that the-service by publication was invalid and that she had no notice thereof. Notice was duly given for the hearing of said motion, and the matter was heard July 25, 1891, when the plaintiff moved the Court for leave to-file an amended affidavit for service by publication, on
“1887.
Sept. 13. Petition in divorce filed, ent. and cause docketed.
Sept. 13. Affidavit for publication filed and ent.”
But the Court overruled said motion, and thereupon the cause came on to be heard on the motion to set aside said decree ; and the plaintiff offered in evidence a paper purporting to be an affidavit, and the only one found on file — the body of the same being as follows :
“ Personally came before the undersigned, a notary public, in and for the County of Jackson, State of Missouri, W. E. L. Patterson, plaintiff in the foregoing cause, who being by me duly sworn states on oath as follows : That he is informed and believes that' the defendant Ellen A. Patterson resides out of the State of Kansas, and that a service of summons cannot be made on her in said State. That her residence and post office are unknown to him, and cannot be ascertained by any means in his control.”
This paper was indorsed : “Affidavit as to non-residence. Filed Sept. 13,'87.” No further evidence was offered by either party. The Court found that said paper was totally defective and void as an affidavit for publication, and the decree was vacated and set aside. The plaintiff then moved the Court to have the cause entered on the trial docket and that it stand for trial. This motion was sustained, and the cause came on for hearing February 15, 1892,— both parties appearing by counsel, but the plaintiff failed to produce any evidence, and the Court dismissed the case at his cost and subject to his exception. On the same day the plaintiff filed a motion
Section 72 of the Civil Code authorizes service by publication “ in actions to obtain a divorce where the defendant resides out of the State ;” but section 73 of said Code, as in force in 1887, required that, before such service could be made, an affidavit must be filed that service of a summons could not be made within this State upon the defendant, and showing that the case was one of those mentioned in section 72. The paper introduced in evidence was scarcely an affidavit, in form, at all. Atchison v. Bartholow, 4 Kan. 124; The State v. Gleason, 32 id. 245, 250. It would seem, however, that the Court might have allowed an amendment so as to make tlie same positive in form instead of a statement of mere information and belief. Harrison v. Beard, 30 Kan. 532. Yet the affidavit would be insufficient by reason of the entire want of any showing that the case was one of those mentioned in section 72 of the Civil Code specifying the cases in which service may be made by publication. The filing of an affidavit complying substantially with the terms of said section 73 is a condition precedent to the obtaining of service by publication. Shields v. Miller, 9 Kan. 390, 398; Claypoole v. Houston, 12 id. 324; Harris v. Claflin, 36 id. 543, 551. Under the rule laid down in the case last cited the foregoing affidavit was void.
The plaintiff in error contends, however, that it was sufficient as an affidavit required by section 641 of the Code, excusing the mailing of the publication
It may be added that the plaintiff recognized the correctness of the ruling of the Court; for he moved to have the cause entered on the trial docket for disposition on the merits. But, when confronted by his wife in open court, he was dumb; he opened not his mouth. There was no course left for the Court but to dismiss his case ; and its action in so doing is not a proper subject of complaint.
The judgment must be affirmed.