21 Kan. 124 | Ark. | 1878
The opinion of the court was delivered by
This was an action on a note and mortgage. Service of summons was made by publication only. The affidavit upon which the service of summons was made-stated that the service could not be made on any of the defendants within the state, and that the action was one for the foreclosure of a certain mortgage on real estate, but the affidavit did not state or show that the defendants were nonresidents of the state, or that they in any manner attempted to avoid the service of summons. In this we think the affidavit was defective.
The affidavit concerning the publication of the notice stated that' the notice was published in a weekly newspaper, and then stated that the notice “was published in said paper for three consecutive weeks, the first publication being made on the 13th day of April, 1877, and the last publication being made on the 20th day of April, 1877.” This affidavit we think was defective in showing that the notice was not published for the period of three weeks.
Judgment was rendered in the court below on default (none of the defendants appearing in the case) in favor of the plaintiffs and against the defendants, and the mortgaged property was ordered to be sold immediately, although the mortgage contained the words “appraisement waived.” In ordering an immediate sale of the mortgaged property we think the court below erred.
Upon these proceedings, the defendants below, as plaintiffs in error, then brought the case to this court and asked for a reversal of the judgment below, because of said defective affidavits, and because of the order for the immediate sale of said property. With reference to the first affidavit, they cite the cases of Shields v. Miller, 9 Kas. 390; Ogden v. Walters, 12 Kas. 282; and Claypoole v. Houston, 12 Kas. 324; with reference to the second affidavit, they cite the General Statutes of Kansas of 1868, page 643, section 74; and with reference to the immediate sale of said property, they cite Reynolds v. Quaely, 18 Kas. 361.
After this case was brought to the supreme court, the defendants in error, plaintiffs below, discovered the said defects and errors in their case, and, after due notice to the adverse party, and with leave of the court below, amended the defective and erroneous proceedings in the following particulars to wit: they amended the first affidavit by filing a new and amended affidavit, stating and showing that at the time of the commencement of this suit all of the defendants were non-residents of the state, and that service of summons could not be made upon any of them within this state, and that the action was and is one to foreclose a mortgage, &c. This amended affidavit was sufficient. They'amended the'other affidavit by filing a new and amended affidavit, showing that said notice . was published in said weekly newspaper “for three conseoutive weeks, to wit, April 13th to April 27th, 1877” — that is, we construe the affidavit to mean, that there were three in•sertions of the notice in the said newspaper, to wit, one on April 13th, one on April 20th, and one on April 27th, 1877, and, with this construction, we think the affidavit as thus amended was sufficient. With reference to the publication •of notices in newspapers, see Reed v. Sexton, 20 Kas. 195, 200, 201. Said judgment was amended so as to stay all proceedings under it for six months from the rendition thereof.
After these amendments were made, and before the case was heard in this court, the defendants in error, plaintiffs below, filed in this court, and with the papers in the case, a -certified transcript of such amendments, and of the proceedings of the court below connected therewith. Now with these amendments we think the judgment of the court below •ought to be affirmed.
That affidavits may in many cases be amended, we suppose will not be controverted. (Code, §139; Burton v. Robinson, 5 Kas. 287; Robinson v. Burton, 5 Kas. 293; Foreman v. Carter, 9 Kas. 674, 680, et seq.) And that both the affidavits in this case may be amended, see last case above cited. The original affidavit for service by publication was not void. (Ogden v. Walters, 12 Kas. 283, 293, 294.) And neither was the publication of notice void because of the defective proof ■of such publication. (Foreman v. Carter, ante, and Challiss v. Headley, 9 Kas. 684, 687.) And as to amending the return on original process so as to make it show that the defendant was regularly served, see Kirkwood v. Reedy, 10 Kas. 453. The affidavit of publication and the publication together were sufficient in this case to bring the defendants into court. ■Such affidavit and publication were at most only voidable; and as the affidavit for publication and the affidavit in proof of publication were both amended and made sufficient before •either of the affidavits or the publication was set aside or voided, neither of them will now be set aside or voided. That is, the first affidavit was defective, but not void. The publication of the notice taken by itself was regular and valid, but taken in connection with the affidavit for publication, was irregular and voidable, but not void. The service, therefore, though defective, was sufficient until set'aside by some direct proceeding instituted for that purpose. If the first affidavit or the publication of notice had been void, then the proceedings could not have been amended. For where defendants are not brought into court by the original proceedings, then no amendments can be made that will bring them into court, and the proceedings will remain void. Whether the second affidavit, that is the affidavit in proof of publication, was void or only voidable, makes but little difference; for defendants are brought into court not by the proof of service, but by the service.itself. It therefore makes but little difference whether we consider the amendment to this affidavit as an amendment or as a new and original affidavit, for the amended affidavit was sufficient in and of itself.
We shall affirm the judgment of the court below in this case, for upon the record of the case as it now appears in this court (including said supplemental proceedings), it ought to be affirmed. We shall, however, require that the defendants in error pay all costs that accrued in this court prior to the filing of said supplemental transcript; for, as the record of the case appeared in this court up to that time, and as it appeared in the district court at the time the case was brought to this court, and up to the time when said amendments were made, the judgment should have been reversed, and the defendants in error should have paid all costs accruing in this court. The plaintiffs in error will be required to pay all costs accruing in this court since said supplemental transcript was filed.
Judgment affirmed.