Armstrong v. Middlestadt

• Decision Date: 05 January 1888
• Citation: 22 Neb. 711,36 N.W. 151
• Parties: ARMSTRONG v. MIDDLESTADT.
• Court: Nebraska Supreme Court

22 Neb. 711

36 N.W. 151

ARMSTRONG

v.MIDDLESTADT.

Supreme Court of Nebraska.

January 5, 1888.

Syllabus by the Court.

Where, in an action to foreclose a tax lien on real estate, the petition and affidavit for publication were duly sworn to on the fifth day of March, 1883, in Madison county, Nebraska, and filed in the office of the clerk of the district court of Pierce county on the succeeding day, held, that the affidavit for publication was sufficient to authorize service on the defendant by publication.

Where, by notice by publication, a defendant was required to answer on the forenoon of the day on which, by law, the answer should have been filed, held, that the notice was not therefore invalid, but that the defendant had the entire day in which to answer.

The 10-days notice to the adverse party, provided in section 498 of the Code, is necessary in all cases where it is sought to confirm a sale of real estate in vacation. Such notice is jurisdictional, and unless it has been given no valid confirmation can be had in vacation.

Error to district court, Pierce county; TIFFANY, Judge.

This was an action of ejectment to recover possession of 160 acres of land, and was brought by William Armstrong against Jargus Middlestadt. Decree for the plaintiff for 40 acres. Plaintiff brings error.C. C. McNish, H. C. Brome, and White & Mapes, for plaintiff in error.

A. N. Childs and N. A. Rainbolt, for defendant in error.

MAXWELL, C. J.

In September, 1885, the plaintiff brought an action in the district court of Pierce county to recover the possession of 160 acres of land. The defendant claimed title to 40 acres of the land in controversy under a tax deed, and to the remainder of the tract, being 120 acres, by virtue of the foreclosure of certain tax liens, and a deed under the decree of foreclosure. On the trial of the cause the court rendered a decree for the plaintiff for the 40 acres, which the defendant claimed under a tax deed, and for the defendant for the 120 acres which he claims under the foreclosure proceedings. The plaintiff contends that the sheriff's deed under the tax foreclosure is void, for the following reasons: First, the petition and affidavit for service by publication in the foreclosure action were filed in the district court of Pierce county on the sixth day of March, 1883, and both were sworn to on the preceding day; second, that the publication notice was insufficient; and, third, want of authority to confirm the sale. The record shows that the petition and affidavit for service by publication in the tax foreclosure were sworn to in Madison county on the fifth day of March, 1883, and filed in the office of the clerk of the district court of Pierce county on the succeeding day.

Section 78 of the Code provides that “before service can be made by publication, an affidavit must be filed that service of a summons cannot be made within this state on the defendant or defendants to be served by publication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication.” It will be seen that the statute does not require the petition to be filed before the affidavit is made. Fairly construed, we think that the act of verifying the petition, making the affidavit for publication, and the instituting of the action by filing the same in the office of the clerk of the district court of Pierce county, may be regarded as continuous acts in the bringing of the action to foreclose the tax liens. For aught that appears the petition may have been verified and the affidavit for publication made late at night on the fifth day of March, 1883, and for aught that appears may have been filed in the office of the clerk of the district court of Pierce county soon after midnight, or early in the morning of the sixth day of March of that year. It must be presumed, too, if the defendant Culver was a non-resident of the state on the fifth day of March, he continued to be such on the sixth. The affidavit for publication, therefore, was sufficient, and the objections raised to it are overruled. In sustaining this affidavit we do not wish to go beyond the facts in this case, and to hold that an affidavit made several days before the commencement of an action would be sustained. The affidavits in any case are merely prima facie evidence of the facts stated therein, and the defendant, notwithstanding, may show that he was a resident of the state, and that service of summons might have been had upon him therein. The plaintiff in error, however, corroborates the affidavit in this case by introducing a deed to the land in controversy from Culver and wife to Armstrong, which deed shows Culver to be a resident of the state of Illinois.

2. The notice of publication in the tax foreclosure action...