Claypoole v. Houston

1. Reforming Deed; Jurisdiction of District Court. The district court has jurisdiction to correct and reform an administrator’s deed, which, through a mutual mistake of all the parties, was made to read “seventy degrees and thirty-nine minutes,” when it was intended and should have read “seven degrees and thirty-nine minutes,” so as to make said deed conform to the intention, agreement and understanding of all the parties. 2. Constructive Service; Insufficient Affidavit. It is error for the district court to appoint a guardian ad litem for a minor, and render judgment against such minor, where said minor makes no appearance in the case, and where the only service of summons upon him was by publication upon an insufficient affidavit. 3. -Where the affidavit for constructive service upon a nonresident defendant, after alleging thathe “is a nonresident of the state of Kansas, and that service of a summons cannot he made upon him within the state of Kansas,” states the additional ground in these words, “And that the above entitled cause is one of those mentioned in section 72 of the code of civil procedure of the state of Kansas, and that said action relates to real estate in this state,” such affidavit is insufficient, and a service made thereunder is voidable. The affidavit should show, by a sufficient statement of facts, the existence of a cause of action in favor of the plaintiff and against the defendant, and what that cause of action is, in order that the court may see, from such statement of facts, that the action is one of those mentioned in $ 72 of the code.

Error from Leavenworth District Court. The action below was brought by Levi Houston as plaintiff, against Marcus-D. Claypoole, Thomas Plowman, and Sarah E. Plowman, and Merrit H. Insley, as administrator of the estate of Jeremiah H. Claypoole, deceased, as defendants, alleging among other matters that Insley, as such administrator, had attempted to execute a certain statutory power, that of making a deed for lands of a decedent, sold, as he claimed, under order of a probate court, but had failed to do so, and wanted the aid of said district court, as a court of chancery, to correct an alleged mistake in the administrator’s deed. Marcus D. Claypoole, a minor son and heir of said decedent, was a nonresident of the state; and being a necessary party, an affidavit was made, and publication order issued and published, for constructive service upon him. Said affidavit is set forth in full in the opinion, infra. The district court, at the November Term 1871, gave judgment against all the defendants, reforming and correcting said deed, and defendant Clay pooh brings the case here on error. Other facts and proceedings are stated in the opinion. 1. The district court had not jurisdiction to render such judgment, and erred in doing so: Cridley v. Phillips, 5 Kas., 349; 1 Story’s Eq., §177. 2. Said judgment was and is also void, as against plaintiff in error, for want of jurisdiction of, •or over the person of plaintiff in error. The only summons issued in the action was not served on plaintiff in error. The affidavit to obtain constructive service was not sufficient to authorize service by publication, for several reasons. First, because it does not, as required by § 73 of the code, show that the case was one of those mentioned in § 72 thereof. To show it was such a case, it should have been stated in the affidavit what the case was, and if from such statement it appeard that the case was one of those mentioned in § 72, then it would have been thereby shown it was such a case; but merely to state that it was such a case, is not showing it to be so. Lewis v. Hancock, Sneed, (Ky.) 151. The statement in the affidavit “that said action .relates to real estate in this state,” is not sufficient to show that the action was one of those mentioned in said § 72, because that would not make the showing required, without also showing in the affidavit that Marcus D. Claypoole had or claimed a lien or interest, actual or contingent in the land, a description of which should have been therein given or referred to. If from any cause said affidavit is defective, then any constructive service was void, and the court had not jurisdiction of the person of plaintiff in error. See opinion in Shields v. Miller, 9 Kas., 398. 3. The court could not lawfully appoint a guardian for the suit for plaintiff in error, until it had, in the manner, and as required by law, obtained jurisdiction of his person. See § 33 of the code, and 23 How., 133,145; 38 Miss., 420; 21 Xnd., 19; 30 111., 215, 223; 11 Vesey, 563; 9 Paige, 255; 2 J. J. Marshall, 487. And therefore the appearance and answer for said plaintiff in error, made by the guardian appointed by the court for that suit, did not bring him before that court. 1. That the district court might well give the aid it did, we refer to 1 Story’s Equity, §§ 169,170. 2. The affidavit for constructive service complies with the statute. Courts have .uniformly held an affidavit for attachment in the language of the statute sufficient. The record shows a finding of the court, and that proof of publication of notice to Claypoole was made.