29 Kan. 337 | Kan. | 1883
The opinion of the court was delivered by
This was an action brought by the plaintiffs against the defendants, to recover a quarter-section of land situate in Miami county. The defendants, Wilson Palmer and Martha Ann Palmer, defended for a portion thereof. The second or final trial' was had before the court without the intervention of a jury. Upon the trial it was established that Joseph Shafer was the pátentee from the United States of the land in controversy, and that the plaintiffs are the heirs of said Shafer. The defendants, Wilson Palmer and Martha Ann Palmer, introduced evidence of title to the part of the land claimed by them, based upon a judgment of the district court of Miami county, rendered November 18,1875, wherein Sarah A. Williams was plaintiff, and Joseph Shaker defendant. By this judgment, title to the land was quieted in Sarah A. Williams, and after said judgment, and on the 25th day of August, 1876, Sarah A. Williams and Joseph A. Williams her husband conveyed by deed the premises to the defendant Wilson Palmer, subject to a mortgage to one A. C. Jacobs, for $200. The court found that the judgment in the case of Sarah A. Williams, v. Joseph Shaker, estopped the plaintiffs from recovering the real estate therein described. This ruling is complained of. The service in the case of Sarah A. Williams v. Joseph Shaker was by publication, and it is alleged that the judgment is without force, because the action was against Joseph Shaker, andnotagainst JosephSha/fer, theances
I. Within the doctrine of idem sonans the variance between Shaker and Sha/er is not sufficient to render the judgment of the 18th of November, 1875, a nullity. The question of variance of sound in the different spelling of names has frequently been a matter of discussion before the courts, and our conclusion is supported by Case v. Bartholow, 21 Kas. 300, and Cochran v. Atchison, 27 Kas. 728. See also the following list of names, where the Variance in pronunciation has been held immaterial: Josiah and Josier, 1 Litt. 216; Japheth and Japhath, 22 111. 257; Belton and Benton, 44 111. 32; Penryn and Pennyrine, 14 Md. 121; Corn and'Conn, 8 Ind. 18; Charleston and Charlestown, 10 Ind. 366; Hudson and Hutson, 7 Mo. 142; Wooley and Wolley, 21 Ark. 462; Susan H. and Susannah H., 4 Blackf. 435; Pillsby and Pillsbury, 9 Ohio, 120'; Steven and- Stevens, 3 Scam. 25.
II. The affidavit for service by publication, which is alleged to be fatally defective, reads as follows, (omitting court and title:)
“J. F. Chandler, being duly sworn, says that he is the agent of plaintiff in this action; that defendant is a nonresident of Kansas; and that service of summons cannot be had upon him within this state; and that the above action relates to and the subject- of it is real property, situated in Miami county, Kansas, in which defendant has an interest, from which the plaintiff seeks to exclude-him.”
As this affidavit was drawn in substantial compliance with ■ §72 of the code,’it was sufficient foundation for service by publication. At least, the service made- thereon cannot be attacked collaterally. (Ogden v. Walters, 12 Kas. 282.)
III. The petition filed by Sarah A. Williams alleges:
“That on December 2, 1873, the sheriff of Miami county, Kansas, by virtue of an execution issued on a judgment legally rendered in favor-of J. A. Williams against Joseph Shaffer,*340 levied upon all the real estate belonging to Shaffer, in the N.E. J of 11-19-23, in Miami county, Kansas, and the same day, on actual view, caused the same to be duly appraised, giving the names of the appraisers, etc., etc., and after causing the same to be advertised according to law, on the 6th day of January, 1874, at a public sale, duly and legally held, sold the said real estate to S. A. Williams for $367; and afterwards, on the 10th day of January, 1874, executed a deed to S. A. Williams for said lands, described as being a part of the northeast quarter of section 11, township 19, range 23, .containing 100 acres more or less, situated in Miami county, state of Kansas.”
Then follows an averment that said description is defective and indefinite, because it does not describe what portion of said quarter-section it was intended to convey.
Then follows what plaintiff says is an accurate description-of said land, and about which there is no dispute; and then that by reason of said indefinite description of said land, Shaffer claims some interest in the same. Then follows a prayer, asking that defendant be ordered to execute and deliver to plaintiff a deed conveying to plaintiff all of defendant’s right, title and interest in and to said real estate as accurately described, and that in case said defendant shall fail to execute and deliver to plaintiff said deed, the court may order that defendant be excluded from any interest in said real estate, and that said judgment operate as a deed of said lands from defendant to plaintiff, and for such other and further relief as plaintiff may be entitled to.
It is not necessary for us to decide whether the petition states such a cause of action as would be good if challenged by a demurrer. If it contains sufficient matter to challenge the attention of the court as to its merits, and such a case is thereby presented as to authorize the trial court to deliberate and act, a judgment rendered thereon is not void. From the petition and notice by publication the court acquired jurisdiction; thereafter it had the right to decide every question that occurred in the cause, and whether its decisions be correct or not, its judgment until reversed must be