96 Kan. 748 | Kan. | 1915
The opinion of the court was delivered by
This appeal chiefly presents the narrow question whether an application is sufficient to open a judgment obtained by publication service when verified by defendant’s attorney “on information and belief.”
The facts in brief were these: On January 12, 1910, the plaintiff brought a suit to quiet title to a quarter section of land in Rice county. Service on some of the defendants, including Richard M. Vanatta, William V. McCulley and William R. Mc-Culley, was effected by publication. On April 6, 1910, a default judgment was rendered against these defendants. On April 3, 1913, three days before this judgment became absolute, defendant Vanatta and the two McCulleys filed their application to open the judgment. Notice was served on plaintiff, and the defendants’ answer was attached to the application.
To conform to the statute requiring the defendants in such case “to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he- had no actual notice thereof in time to appear in court and make his defense” (Civ. Code, § 83), their attorney filed an affidavit in part as follows:
“That he is duly authorized attorney for the defendants above named; that each of the said defendants, Richard M. Vanatta, William V. Mc-Culley, and William R. McCulley, is a non-resident of the state of Kansas, and is absent from Rice county, Kansas, at the present time; that this affiant has full power to make this affidavit as attorney for the said parties; that affiant has read the above and foregoing application on behalf of the said defendants, and that the matters and things therein set forth and the allegations and averments therein contained are true', as this affiant is informed and verily believed.”
When the application came on to be heard, the court took it under advisement; and thereafter the defendants, by leave of court, filed amended and supplemental affidavits sufficient in scope and form to warrant the court in granting their application if they had been filed in time. The court granted the application, and set aside the judgment as to these defendants;
The appellant offered to prove by defendant Richard Vanatta that he personally did not know of the pendency of the action prior to April 6,1918, and that he had not employed or authorized any attorney to appear for him prior to that date. This proffered evidence was excluded.
In substance the errors assigned are (1) opening of the judgment on the affidavit filed by counsel “on information and belief,” and (2) the exclusion of evidence.
It would be gratifying if we could say that the- authorities and precedents on this question were clearer and more harmonious. We do find, however, a strong analogy between the present question and those which have arisen on publication service initiated on defective affidavits. ■ Any valid judgment must be based on valid service. A valid service by publication can be based only on a positive affidavit. But this court has repeatedly held that while an affidavit for publication service, verified only “on information and belief,” is invalid, it is not void, and even after judgment such defective affidavit may be amended by positive verification. (Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Long v. Fife, 45 Kan. 271, 25 Pac. 594; Morris v. Robbins, 83 Kan. 335; 111 Pac. 470.) These cases likewise show that mere formal defects may be corrected by amendment.
What is the purpose of affidavits to support an application to open a judgment? It is “to make it appear to the satisfaction of the court” that the defendants had no actual notice of the action in time to appear and make their defense. The important matter is the fact of their want of notice and that the court be satisfied on that point. If the affidavits recite all the necessary-facts- to challenge the attention and conscience of the court, it would be a hard rule to hold that because of defective verification, or verification in the only way an attorney employed by a nonresident client could verify, the chancellor should have regard-to the form rather than the substance of
The judgment is affirmed.