2 Kan. App. 62 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
On the 2d day of May, 1887, Oliver Marsh and Clarissa A. Marsh made their promissory note, payable to R. H. Lockwood and J. W. Clendenin, and to secure the payment of this note and the money to become due thereon they executed and delivered to the payee therein named a mortgage on land situated in Ford county, Kansas. The conditions of the note and mortgage having been broken, the payees of the note and mortgage, on the 9th day of February, 1889, commenced suit in the district court of Ford county, Kansas, to recover judgment upon this note and for a decree of foreclosure of the mortgage, and in the suit a number of persons other than the payers and mortgagors were made defendants, for the reason, as stated in the petition of the plaintiffs below, that since the execution of said mortgage said persons had acquired some interest in or lien upon the mortgaged premises, which interest and lien were inferior and subordinate to and subject to the lien of the plaintiffs. Upon the filing of the petition and precipe, a summons was issued by the clerk of said court, directed to the sheriff of said county, and all of said defendants were duly served with summons by the sheriff except Wiler, Ackerland & Co., Herman Mier, Mrs. S. H. Overhuls, H. M. Weaver, E. 0. Jones, and H. H. Kimbrel. On the 9th day of July, 1889, the plaintiffs, by their attorney, made and filed an affidavit of non-residency of defend
“B. F. Milton on his oath says, that he is an attorney for plaintiffs ; that as such attorney he made the within affidavit, dated July 9, 1889 ; that he now amends said affidavit so that the same shall stand and include the following additional statement: Affiant says the facts as to non-residence of the defendants Wiler, Ackerland & Co., Herman Mier, Mrs. S. H. Overhuls, H. M. Weaver, E. 0. Jones and H. H. Kim-: brel were true from said date, July 9, 1889, up to and on said March 6, 1890, when a new service by publication was made, and that at no date during the time intervening were plaintiffs able, with due diligence, to make service of summons upon said defendants personally within the state of Kansas, for that said defendants were at and between said dates non-residents of said state of Kansas. All other allegations of the within affidavit are hereby referred to and made a p>art hereof, and the same continued to be true from the date as above stated up to and on March 6, 1890.”
“That said defendants, Oliver Marsh, Clarissa A. Marsh, PI. M. Weaver, E. 0. Jones, H. H. Kimbrel, J. H. Crawford, Lewis Wiler, Isaac Wiler, William Ackerland, Max Ackerland, and E. A. Wiler, doing business under the firm name of Wiler, Ackerland & Co., George Ingleheart, Robert Winnie, and John A. Johnson, doing business as Ingleheart, Winnie & Co., J. H. Crawford, Peter Smith, Herman Mier, M. V. Markley, Mrs. S. H. Overhuls, J. S. Marcus, Steven Field, as assignee of 0. Marsh & Sons, were duly summoned to appear in this action. And the court further finds, that said plaintiffs have a lien on the real property in said petition described,, by virtue of the mortgage in said petition set out, to secure the payment of said indebtedness, subject, however, to the lien of-dollars described in said petition.”
At the same term of court at which the decree was taken, the defendants H. M. Weaver, E. 0. Jones and H. H. Kimbrel filed their motion to set aside the judgment of foreclosure rendered against them, for the reason that it is void for want of jurisdiction over them, which motion was overruled by the court, and these defendants duly excepted, and the court allowed them 90 days to make and serve a case for the supreme court. Case was made, signed and settled and filed with petition in error in the supreme court, and afterward duly certified to this court by order of the supreme court.
“After this case was brought to the supreme court, the defendants in error, plaintiffs below, discovered the said defects and error in their case, and with 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, etc. This amended affidavit was sufficient.....Now, with these*68 amendments, we tliink the judgment of the court below ought to be affirmed.”
In the case of Harrison v. Beard, 30 Kan. 532, the supreme court says:
“While the affidavit was thus defective and insufficient it was not wholly void; therefore, as the amended affidavit was positive and sufficient, the court erred in not permitting the affidavit for publication to be amended.”
There being no error in the proceedings of the district court, the judgment is affirmed.