56 Kan. 419 | Kan. | 1896
The opinion of the court was delivered by
: It is unnecessary to consider whether the service by publication was or was not void, • for it was attacked directly by motion in good season, and therefore we have the question before us whether the proceeding was regular or erroneous. It is well settled that, with some exceptions, not including this controversy, the jurisdiction of a court does not extend beyond the boundaries of the state, so as to bind personally by its adjudication those outside of such boundaries. No personal judgment against a non-resident can be obtained, unless he shall enter his appearance or be served with process within the state, although any property which he may have within the jurisdiction may be subjected to any just
In the case of a creditor proceeding by publication, the fact that he is seeking to subject property of the defendant within the jurisdiction must affirmatively appear. (Repine v. McPherson, 2 Kan. 340, 346.) In a suit against a foreign corporation, where its treasurer, found within the state, is garnished, but he has no funds of the corporation in his hands here, the court obtains no jurisdiction over the corporation or its property in another state on service against it by publication, (Wheat v. P. C. & Ft. D. Rld. Co., 4 Kan. 370,) and where the affidavit for publication does not state directly, inferentially, or in any other way that the' action brought is one of those mentioned in section 72 of the civil code, it is fatally defective, and service by publication cannot be obtained thereon. (Harris v. Claflin, 36 Kan. 543.) In Neal v. Reynolds, 38 Kan. 432, 435, a party sought to^ rescind a contract for the
It was unnecessary to bring the second case here, as everything essential to a consideration of the question involved was presented in the first case, and the second will therefore be dismissed.
: Two proceedings in error were submitted for a review of rulings made in the case in the district court — the first attacking the service as absolutely void, and the second attacking the validity of the, judgment rendered. As the principal relief demanded in the action was the recovery of real estate, and to exclude others from any interest in it, service by publication was authorized, and therefore cannot be said to be void. The affidavit and notice embraced all that is required for constructive service under section 72 of the code, and it will hardly do to say that the service was destroyed on account of redundancy in either the affidavit or publication. If the service was. irregular by reason of surplusage, it was cured by a subsequent general appearance of the defendant in the¡ case, when he came in and asked affirmative action of the trial court. More- than that, when a party ap-¡ pears after constructive service, and his appearance is-not induced by fraud of the plaintiff, he is in court for. all purposes and for every step that may be taken in the cáse. If causes of action are improperly joined in the petition, the code requires that a party must raise the objection by demurrer or answer; and if he does not do so by either method, he is deemed to waive the defect. Of course, if default is made upon service by publication only, no relief can be had ex