Tunis v. Withrow

BaldwiN, J.

There are various errors assigned by appellant, all of which are resolved into and may be determined by the one question, whether the service of the original notice was so made as to give the court jurisdiction to render judgment by default against defendants.

The service of the original notice was made by publication, and appellant insists that there was no proof before the District Court that such publication Avas ever made; that there was no proof filed, or made before the court, showing that a copy of the petition and notice was sent by mail to defendant; and that there was no diligence used by plaintiff, his agent or attorney, to ascertain the residence of defendant, such as is required to be made by our law before default can be entered. Code, section 1826.

It appears from the transcript that the plaintiff, by his attorney, filed what he claimed to be an affidavit, proving such publication; also what he claimed to be an affidavit, showing the diligence used to ascertain the residence of defendant. When filed, such paper become a part of the record of the cause. Such evidence should be of record in proceedings thus ex parte. Lot 2 v. Swetland, 4 G. Greene 465.

The clerk certifies that the transcript of this cause as sent up to this court, is a “full, complete and correct copy of the papers and records thereof.” There is nothing in the record which tends to prove the publication made, or the diligence used, but the affidavits above referred to; and we conclude there was no other evidence before the court upon this subject. These affidavits are clearly defective. The jurat of one is not evidenced by the seal of the notary public before whom the affidavit purports to have been made, and the other has neither the seal nor the signature of the notary annexed *308 thereto, nor is the name of the officer or his seal referred to in the body of the affidavit. We consider that the official acts of a notary public should be authenticated by seal and signature, and that an affidavit is not proved to have been made, unless the jurat is authenticated by both such seal and signature.

It is claimed by counsel for appellee, that the District Court is a court of general jurisdiction, and that its acts are presumed to be correct; that the decree entered by the court in which is recited “ that the defendant being called comes not, though served with notice of the pendency of this suit as by law provided,” is presumptive evidence to this court that proper proof of publication and diligence used was before the District Court, otherwise no such decree would have been entered. Whilst it is true that every presumption is to be made in favor of the jurisdiction of the District Court, yet if the record discloses the fact, that the evidence which is the basis of such jurisdiction, and which must appear of record, was never made before the court, such presumption is thereby rebutted.

It is the policy of the law to give every party his “day in court” before his rights are adjudicated and passed upon, and before courts will render judgments or decrees against persons or their property, upon constructive notice, every requirement of the law for making such notices complete should be fully complied with. There does not appear of record anyproofof such service in this cause, asthelawrequires. The affidavits thus filed are nothing more than the certificates of the parties making them.

The decree of the District Court is therefore set aside.