American Home Life Ins. Co. v. Heide

• Decision Date: 13 November 1967
• Docket Number: No. 44804,44804
• Parties: AMERICAN HOME LIFE INSURANCE COMPANY, a corporation, Appellee, v. J. E. HEIDE, Appellant, and Ronald D. Tetzloff and Patricia L. Tetzloff, his wife; William E. Look and Blanche N. Look, his wife; William R. Sims and Charlene K. Sims, his wife, Defendants.
• Court: Kansas Supreme Court

Page 454

433 P.2d 454

199 Kan. 652

AMERICAN HOME LIFE INSURANCE COMPANY, a corporation, Appellee, v. J. E. HEIDE, Appellant and Ronald D. Tetzloff and Patricia L. Tetzloff, his wife William E. Look and Blanche N. Look, his wife William R. Sims and Charlene K. Sims his wife, Defendants.

No. 44804.

Supreme Court of Kansas.

Nov. 13, 1967.

Rehearing Denied Dec. 13, 1967.

Syllabus by the Court

1. K.S.A. 60-309(a) contemplates the opening up of default judgments rendered on service by publication so that a defaulting defendant may be let in to defend on the merits.

2. K.S.A. 60-309(a) presupposes jurisdiction was obtained over the defaulting defendant. Its purpose is to give such a defendant who can comply with its terms his day in court so he can defend on the merits. The statute does not contemplate the vacating of a void judgment, and one attacking a void judgment is not bound by its procedural limitations.

3. A motion in an action asking that a district court's judgment therein be vacated because of lack of jurisdiction over the person is within the purview of K.S.A. 60-260(b)(4).

4. It a declaration has in fact been made under oath it is an affidavit, although no jurat be attached. The jurat is merely evidence that an oath was duly administered, and in the absence of a jurat the fact may be proved by evidence aliunde.

5. When a paper purporting to be an affidavit has been approved as such by the court, and has been made the basis of judicial action as if it were duly authenticated, the omission of the jurat is a mere irregularity which does not vitiate the subsequent proceedings based on the affidavit.

6. Where service by publication is in good faith sought to be obtained, the question of jurisdiction is to be determined by the statute authorizing publication service.

7. Whether a plaintiff with due diligence is unable to make service of summons upon a defendant within the state is a question of fact to be determined by testimony before constructive service can be completed, and the only evidence required by the statute authorizing such service to establish that fact is a prescribed affidavit.

8. When such an affidavit for constructive service has in good faith been filed, and notice by publication given, and the proceedings have been examined and approved by the trial court, as required by the statute authorizing such service, then jurisdiction over the person exists and the judgment rendered is valid.

9. The record of trial in a foreclosure proceeding wherein service of summons by publication was had is examined and it is held, the statutory requisite for such service having been met, jurisdiction was obtained over the person of the defendant and a valid judgment rendered against him.

M. D. Bartlow, Topeka, argued the cause and was on the brief for appellant.

Arthur E. Palmer, Topeka, argued the cause, and Marlin S. Casey, Ernest J. Rice, Murray F. Hardesty, Glenn D. Cogswell, Gerald L. Goodell, Wayne T. Stratton, Robert E. Edmonds, Thomas E. Wright, and Roger R. Viets, Topeka, were with him on the brief for appellee.

HARMAN, Commissioner:

This is a mortgage foreclosure action on real estate located in Shawnee county, Kansas.

A brief chronology is necessary: The mortgage in question was executed September 30, 1960, by Ronald D. Tetzloff and Patricia L. Tetzloff, the then owners of the property; the mortgage shortly thereafter assigned it to appellee. October 24, 1961, the Tetzloffs conveyed the property to William E. Look and Blanche N. Look; March 27, 1962, the Looks conveyed it to William R. Sims and Charlene K. Sims, who in turn, on August 25, 1965, Conveyed it to J. E. Heide, an unmarried man, appellant herein. Each deed of conveyance contained a clause whereby the grantees assumed and agreed to pay the mortgage.

The mortgage became in default prior to the conveyance of the property to appellant and nothing has been paid thereon since August 11, 1965.

On November 2, 1965, appellee filed in the district court of Shawnee county its petition to foreclose the mortgage, naming as defendants all the foregoing named owners including appellant. The same day, upon appellee's praecipe, a summons was issued to the sheriff of Sedgwick county, Kansas, to be served upon appellant at a named address in Wichita. That sheriff returned the summons stating appellant had moved from the address given three months or more prior and after diligent search and inquiry he was unable to find appellant. On December 15, 1965, appellee filed its affidavit for service by publication upon appellant and certain other defendants. With one exception to be mentioned later, the affidavit followed the form prescribed in K.S.A.1965 Supp. 60-307(d) (5). Proof of such publication was duly filed December 30, 1965. No appearance by appellant being made meanwhile, on February 14, 1966, default judgment was entered against him. Order of sale for the property was duly issued and it was sold, appellee bidding it in for the amount of its judgment, costs and taxes. On May 6, 1966, the sale was confirmed by the court. The redemption period was fixed at six months, the court having found that the mortgage was a purchase money mortgage upon which less than one-third had been paid prior to default.

On June 28, 1966, appellant made his first appearance in the proceedings filing an instrument denominated 'Special Appearance.' In this he alleged in substance that the various orders and judgments were void because he, a resident of Shawnee county, Kansas, had not been properly served with a summons, and he moved that they be set aside.

The trial court held a hearing on the 'Special Appearance', taking evidence. The trial court treated appellant's appearance as an application under K.S.A. 60-309(a) to open a default judgment rendered on service by publication. That statute prescribes, among other things, as a prerequisite to relief thereunder, a showing that during the pendency of the action the defendant had no actual notice thereof in time to appear in court and make his defense. At the hearing appellant specifically admitted he had knowledge of the foreclosure proceedings right after the first of January, 1966. Because of this evidence, judgment having been rendered February 14, 1966, the trial court on July 20, 1966, overruled appellant's motion. This appeal is from that order.

First of all, we think the trial court misconceived appellant's motion in treating it as an application for relief under K.S.A. 60-309(a). That section contemplates the opening up of default judgments rendered on service by publication so that a defaulting defendant may be let in to defend on the merits. It presupposes jurisdiction was obtained over the defaulting defendant (see James' Civil Procedure, § 11.4). Its purpose is to give such a defendant who can comply with its terms his day in court so he can defend on the merits (4 Vernon's K.S.A. Code of Civil Procedure, p. 152). Appellant made no attempt to come in under that statute for fairly obvious reasons. 60-309(a) does not contemplate the vacating of a void judgment, and one attacking a void judgment is not bound by its procedural limitations. There is no necessity to defend on the merits against a void judgment before it can be vacated; likewise knowledge of the pendency of the action is an immaterial factor in its vacation; the attack may take various forms, and there is no time limitation.

The substance of appellant's motion, filed in the foreclosure action, as already stated, challenged the validity of the judgment on the basis of the court's jurisdiction over his person, and it positively alleged that the judgment was void, thus bringing the motion within the purview of K.S.A. 60-260(b)(4) which provides:

'(b) On motion and upon such terms as are just, the court may relieve a party or his legal representative from a...