Jones ex rel. Nellis v. Warnick

Attachment — Service by Publication — Affidavit. In an action against non-residents, in which an order of attachment is issued at the time of the filing of the petition, and their real estate is attached, an affidavit for service by publication must be filed, and the first publication made within 60 days from the date of the filing of the petition and other necessary papers. If affidavit for constructive service and the first publication thereof is not made for more than 13 months after the filing of the petition, and the issue, levy and return of the order of attachment, an action has not been commenced, and an order of attachment cannot be issued and served.

Error from Shawnee District Court. The material facts are stated in the opinion herein, filed June 11, 1892. 1. The proceedings in attachment were void. The affidavit alleging non-residence of defendants was sworn to 16 days before the petition was filed, and was filed one day before the petition. This was not a sufficient statement of facts upon which to base an attachment. It might have been true when sworn to, and false when the petition was filed. 1 Wade, Attach., § 3; Adams v. Lockwood, 30 Has. 374. At the time the affidavit was filed there was no cause pending. A civil action is commenced only by filing a petition. Gen. Stat. of 1889, ¶ 4136. The plaintiff can only have an attachment “at or after the commencement” of the action. Gen. Stat. of 1889, ¶ 4273. 2. The first decree was never vacated and set aside. If the court had jurisdiction to render the first decree, its power was then exhausted until that decree was vacated. “The entry of a second decree will not vacate the first.” Freem., Void Judg., § 140a; Nicholls v. Irwin, 2 Neb. 60. 3. No legal service was ever made upon defendants, and consequently the court had no jurisdiction. The affidavit of F. H. Denman, that affidavit for publication was made at the time the petition was filed, is wholly insufficient to cure this jurisdictional defect. If this affidavit was sufficient upon other grounds, it does not state that the affidavit for publication was ever filed. The affidavit is the foundation upon which jurisdiction is obtained. Shields v. Miller, 9 Kas. 266. The record must show a legal service. Repine v. McPherson, 2 Kas. 334. If the first service by publication was void, the second was equally so. The petition was filed July 16, 1878. More than a year afterwards, August 17, 1879, the second affidavit for publication was sworn to and filed. We submit that there was no authority to make service so long after filing the petition. The first attempt to commence the action should have been followed by first publication within 60 days. Gen. Stat. of 1889, ¶ 4097. The action was commenced when the petition was filed. It is true ¶ 4097 has application to the statute of limitations, (Dim-lap v. McFarland, 25 Kas. 341), but it also declares a positive rule of law and practice. It speaks in plain and concise language. It declares within what time publication must be made. It is a mandatory statute. Comm’rs v. Carter, 2 Kas. 109. An attachment will not run against the estate of a decedent, an administrator or executor, or against the heirs of a decedent, to recover a debt due from the decedent. Such a proceeding is in conflict with the policy of the law. Such estates go to the heirs charged with the payment of the decedent’s debts, and the law requires that these debts shall be allowed by certain rules, that require certain priorities or equalities in payment, according to the class of debts. Patterson v. McLaughlin, 1 Cranch C. 0. 252; Peacock v. Wilder, 8 N. J. Law, 179; 2 Dallas, 74; Winchell v. Allen, 1 Conn. 385; 13 Martin (La.), 380; 1 id. 202; Bryant v. Fussel, 11 E. I. 286; Murray v. Walworth, 1 Johns. Cas. 372. Jurisdiction has been conferred upon probate courts alone to sell real estate of decedents to pay debts. Gen. Stat; of 1889, ¶¶ 2898, 2899, 2900, 2901. It is made the duty of the probate court to grant letters of administration upon the decease of any person leaving an estate in this state. Gen. Stat. of 1889, ¶ 2785. Creditors of an intestate are provided with express powers to reach the property of their decedents. They may apply to the probate courts for letters of administration. Gen. Stat. of 1889, ¶ 2796. A creditor cannot, at his option, transfer the settlement of an estate from probate to courts of chancery. McDonald v. Aten, 1 Ohio, 293; 1 Pom. Eq. Jur., § 77. We are not precluded by time. A void judgment may be vacated at any time. If the judgment was void, this disposes of the statute of limitations. Gen. Stat. of 1889, ¶ 4676. The defendant can only defend on the title on which he could prosecute, and plaintiff should recover if he shows paramount title. A. T. & S. F. Rid. Co. v. Fracht, 30 Kas. 66. Where the court had no jurisdiction, its judgment can be attacked collaterally. Paine v. Spratley, 5 Kas. 525. The record'in this case does not show jurisdictional facts. Wade, Attach., §§ 47, 275; Repine v. McPherson, '2 Kas. 334; Wheatley v. Putt, 4 id. 195. Every fact which the law declares shall exist before a court can lawfully hear and determine a cause is necessarily a jurisdictional fact — an element of jurisdiction in the particular case. Stewart v. Anderson, 70 Tex. 588; Waples, Attach., pp. 586, 587; Waples, Pr. Rem., §§ 587, 592. It is evident that the plaintiffs rely entirely in this case upon their collateral attack upon the Osage county judgment. We may remark here, that the notice by publication and proof thereof, the appointment of guardian ad litem, his answer, and the first judgment, first sale and confirmation, and another judgment, seem to be mere surplusage, for want of a previous affidavit for publication. The order of time in which the proper proceedings were had, to give jurisdiction to the court, seems from the record to be as follows: Petition filed July 16,1878. Affidavit for attachment filed same day. Affidavit for publication filed August 18,1879. Publication and proof thereof filed October 24, 1879. Service approved October 24, 1879. The judgment, which we rely upon as effective and valid, and as furnishing a perfect basis for the execution on which the land was sold by the sheriff of Shawnee county, was rendered October 24, 1879, as above stated. The affidavit for the attachment, as stated above, was filed on the 16th day of July, 1878 — the same day on which the petition was filed. The next day a writ of attachment was issued to the sheriff of Shawnee county. On the 16th an order of attachment was issued to the sheriff of Osage county. Defendants owned land in each county. It is true that the affidavit was sworn to 10 days before. The contention of plaintiff in error is, that the attachment is void because it was not sworn to at the time the petition was filed. Now, we submit that while it is proper for affidavit for attachment to be made as near the time of filing petition as practicable, it is the general practice to issue on affidavits made some time before. Creagh v. Delane, 1 Nott & McC., 189; Drake, Attach., 3d ed., §111; O’Neil v. Mining Co., 3 Nev. 142; Graham v. Bradbury, 7 Mo. 281; Piolchard v. Antony, 27 Hun, 269. But we may dispose of this contention, perhaps, by calling attention to the fact that the alleged defect was remedied by the subsequent affidavit of the plaintiff below, and certified by the clerk to have been filed in July or August, 1879 (but not indorsed as filed on original). The charge in the original affidavit (the one alleged as defective) was that defendants were non-residents of the State. This affidavit shows that they were non-residents at the time of the commencement of the action. There can be no question that an affidavit for an attachment, when defective, may be amended. Swearingen v. Howser, 37 Kas. 126; Cassidy v. Flealc, 20 id. 54; Traey v. Gunn, 29 id. 508; Wells v. Panford, 28 id. 487; Robinson v. Burton, 5 id. 293. But we think there is no need of paying further attention to this objection, after calling attention to the fact that the plaintiffs in error admit, in the agreed statement of the facts, that all the defendants have been non-residents of the state of Kansas since the 1st of January, 1877. We do not know how an immaterial error could be more completely rectified. Nolan v. Royston, 36 Ark. 561; Frere v. Perrot, 25 La. Ad. 500; Rogers v. Cooper, 33 Ark. 406. That there was no case pending when the final judgment was rendered; that “the sheriff had let go of his attachment by selling the land;” that “if there was any jurisdiction at all, it was only over the land in Osage county;” that “the previous judgments were not set aside,” may be disposed of briefly. The first judgments were mere surplusage, and nothing but blank paper, for want of valid service. The lapse of time between the filing of the application, the issuance of the writ, and the filing of the petition and the filing of the affidavit for publication, did not take the case out of court. We assert, without fear of dispute, that an action may remain on the docket for years after the filing of the petition, without even an attempt to obtain service, without any detriment, except the danger of running against the statute of limitations. Our statute, requiring service within 60 days, only applies to the commencement of the action within the meaning of the article in reference to the statute of limitations. It would be a waste of words to amplify on this. That the sheriff had “ let go” of his attachment by the first sale, may be answered by asking whether he would have exhausted his power by an unauthorized sale before any attempt had been made to obtain a judgment. If the court had jurisdiction over the land in Osage county, §3721, C. L. 1879, gave full power to issue attachment to Shawnee, and we are unable to see how the counsel for defendants can claim that “this statute cannot give jurisdiction over property in another county than the one in which the action was brought, unless there has been personal jurisdiction over the person of defendant or a co-defendant.” We respectfully submit that some of the conclusions of the learned counsel are quite cool, as compared with some of their tropical premises. We have shown that the proceedings were such, in the district court of Osage county, as to give that court full jurisdiction of the case. It must be admitted that the affidavit for the attachment was amply sufficient, unless we may find cause for alarm in the fact that it was sworn to a few days before filing. But this was cured by the amendment in the affidavit, showing that defendants were non-residents at the time of the commencement of the action, and supplemented by the admission in the agreed statement of facts, on which the case was tried. The affidavit for publication is exquisitely perfect, as is also the notice by publication. That court, then, having this full jurisdiction of the case, as an action in rem, we submit that the district court of no other county had a right to sustain even a direct attack upon its judgment, much less a collateral attack, such as the district court of Shawnee county properly refused to entertain. Meixell v. Kirkpatrick, 28 Kas. 315; Galbreath v. Drought, 29 id. 711.