Headley v. Challiss

1. Motion for Rehearing; Questions Considered. Where a case has once been submitted and decided, this court will not, as a rule, upon a motion for a rehearing consider any question not presented upon the original hearing. 2. Stare Decisis; Rule Extends to all Questions Included in Decision. Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made a subject of reexamination. 3. --This rule extends not merely to all questions actually presented by counsel, but to all questions existing in the record, and necessarily involved in the decision. 4. --Hence, where a defendant in a judgment, upon whom' the only service had been by publication, made a motion to set aside the judgment as void, because rendered without any legal service, or any jurisdiction over the defendant, and upon the hearing of such motion the plaintiff asked leave to correct the notice and proof of publication, which leave was refused, and the motion of the defendant to set aside the judgment sustained, and thereupon the plaintiff prosecuted a proceeding in error to reverse such ruling, upon consideration whereof this court decided that leave ought to have been given, and remanded the case with instructions to grant leave to the plaintiff, as asked, and thereafter the defendant moved for a rehearing on the ground then ffirst presented to this court, that ■ the affidavit for publication was totally defective, and hence that the ruling of the district court was correct and should be sustained, whether the notice and proof of publication, were corrected or not, and such motion was overruled for the reason given in the first paragraph of this syllabus, held, that the defendant was, as to the matter of the affidavit, concluded by such decision', and the question is not open to reexamination in a second proceeding in error upon the same record, with the corrected notice and proof of publication.

Error from Atehison District Court. This case was here before, and is reported in 9 Kas. 684, where a full statement of the facts will be found. It was brought here then by Challiss, who complained of the order of- the district court overruling his motion for leave to correct a record by supplying a certain “proof of publication,” which should have been filed in 1862. This court reversed the order and decision of the district court, and sent the case back with instructions to the district court “ to permit the amendments to be made, the motions [of Headley and others, to set aside the original judgment,] afterward to be decided according to the principles” laid down in such decision in 9 Kas. 686, 687. The case being remanded, the district court, at the Juné Term 1873, allowed the record to be amended, in accordance with Challiss’ motion; and thereafter, at the June Term 1874, the motions of Headley and others, to set aside said judgment of September 27th 1862, again came on for hearing, and were overruled and denied. From this last decision Headley and others now appeal, and bring the case here for review. ' We now bring said proceedings of the court below here for review, and ask this court to reverse the action and decision of the district court, and to instruct the said court to vacate and set aside the said judgment of September 27th, 1862, as the same is void. Said judgment was obtained without any affidavit being filed before service was commenced, or had by publication, stating “that service of summons cannot be made within this state on the defendants to be served. Code of 1859, §79; Code of 1868, §73. The defect in the affidavit is fatal. The law is explicit and peremptory, and there is no way of evading it. Without the affidavit, the attempted service by publication is a nullity. Shields v. Miller, 9 Kas. 390, 398. When the case was in this court at the January Term 1872, it was here at .the instance of Challiss only, and the court merely passed upon the error of the district court in refusing to permit the said Challiss to file proper notice in the foreclosure suit, and to supply proof of publication in same case. At the July Term 1873, we made a motion to reargue the cause, but this court then refused, and such refusal did not go to the merits of the motion. , We then understood that, as the motions could be heard de novo in the district court, on the remanding of the case to that court, and the filing of the amendments and corrections of the record, that we would have full opportunity to present to the district court the matters now suggested, and if then overruled, we could bring the case to this court for review. This we have done. We never have had a decision of this court upon the matters and record now presented — and we do not think we are to be denied a hearing now. This is the first opportunity we have had to present the fatal defects in the affidavit for publication to this court, and we have a right to a decision thereon. Again, we also claim that the district court erred in permitting the pretended amendments and corrections to the original record in this case. Instead of filing the right notice in the suit, and of supplying the proper notice with proof of its publication, the court permitted the affidavits of Mr. Glick and Mr. Cochran to take the place of the “publication notice” and of the proof of its publication. These affidavits are made ten years after the original papers and affidavits (if any there were,) were made and filed; and is it possible that service by publication is to be upheld and sustained in this way? The record shows that only publication and proof thereof was had in the attachment case of Challiss v. Headley & Carr, and now the record is contradicted by affidavits made ten years after the entry of the case. A void judgment may be vacated and set aside at any time, on motion of the defendant: Foreman v. Carter, 9 Kas. 674. 1. We insist that no question is presented in this record not previously decided in some stage of this case by this court, adversely to reversal of this last decision. 2. It is now claimed that the affidavit for publication of July 24th 1862, in the original record, is fatally defective. So counsel complained in his original case, and again made this objection the special ground for reconsideration on his motion for reargument in July 1873. This affidavit stands now as it stood then, and has been twice sustained in this court. For, certainly, if this affidavit is a nullity, and as such makes the judgment and proceedings void, then the decision of the district court in 1871, in deciding the judgment void, was clearly right; and the proceedings thereon held erroneous, being subsequent in order to this affidavit, could not be erroneous if the entire proceeding was a nullity for loant of jurisdiction. ‘Hence, when the district court overruled this motion at June Term 1874, it did just what this court had advised. The case at bar is unlike that of Shields v. Miller. Here there was jurisdiction by the commencement.of the action, and the service of a summons on three of the six defendants, before attempted service by publication. An action was then duly pending. (Code of 1859, § 62.) In Shields v. Miller the action rested alone on the proceeding for constructive service.