Kincaid & Bro. v. Frog

Opinion by Strang, C.:

May 14,1888, the plaintiffs commenced suit in the district court of Linn county, against Mrs. M. S. Frog, formerly Mrs. M. S. Fouts, on a promissory note. At the commencement of the action, Mrs. Frog was a resident of Carroll county, Arkansas. The plaintiffs procured an attachment to issue, which was, on the 15th of May, 1888, levied upon a tract of land then the property of said defendant. The summons was served upon Mrs. Frog on the 19th day of said month, in Carroll county, Arkansas, by a deputy sheriff of that county. No other service was had until January 3, 1889, when service by publication was had. June 5, 1889, judgment was had by the plaintiffs against Mrs. Frog, for the amount of her note sued on, and the attachment proceedings were affirmed. On the same day, the defendant Roberson filed an interplea in the case, setting up title to the land attached, based on.a deed from the other defendant to himself, acknowledged June 9,1888, and recorded the 13th of. the same month. The issue between the plaintiffs and this defendant was tried in September, 1889, resulting in judgment for Roberson, setting aside the attachment and affirming his title to the land. The question is, Did the plaintiffs have a valid lien *768 upon the land by their attachment at the time the interpleader obtained his deed? We think this question must be answered in the negative. The service obtained on the defendant Frog in Arkansas was void. It was not made by the officer authorized by our statute to make such service. (Gen. Stat. 1889, ¶ 4159.) “In all cases where service may be made by publication, personal service of summons may be made out of the state by the sheriff of the county in which such service may be made.” (Flint v. Noyes, 27 Kas. 353 .) The statute authorizes the summons to be served out of the state by the sheriff, and names no other person, and the service cannot be made by a deputy or any other person acting as a substitute for him. The statute also requires the service to be proved, or verified by affidavit, which was not done in this case.

Plaintiffs in error contend that the attachment was valid at the time the defendant Roberson obtained his deed, because the 60 days within which service might have been had had not yet expired, and that the subsequent failure of the plaintiffs to obtain service within 60 days could avail him nothing. If the plaintiffs had followed up the commencement of their action by obtaining service within 60 days therefrom, then the fact that the interpleader obtained title after the commencement of such action, and before service, would have availed him nothing; but when the plaintiffs failed to obtain service within 60 days from the commencement of their action, the whole proceeding, including the attachment, failed. There was nothing, therefore, to prevent the interpleader from taking the land freed from any lien on account of such attachment.

. Counsel for plaintiffs in error says: “The only defect, if any, in the service of the summons, is in the return of the officer.” In this we think counsel is mistaken. The difficulty with the service of the summons is, that it was served by one who had no power to serve it, and it stands, therefore, as though no service had been had. Service by one who has no power to make it is a void service; and where such service is the only service had within the proper period under *769 the statute, the action fails. The subsequent service by publication could not affect the interpleader whose title was obtained prior thereto.

It is recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.