Ballew v. Young

• Decision Date: 13 May 1909
• Docket Number: Case Number: 159
• Citation: 1909 OK 134,24 Okla. 182,103 P. 623
• Parties: BALLEW v. YOUNG et al.
• Court: Oklahoma Supreme Court

1909 OK 134

103 P. 623

24 Okla. 182

BALLEW v. YOUNG et al.

Case Number: 159

Supreme Court of Oklahoma

Decided: May 13, 1909

Syllabus

¶0 1. PROCESS--Service by Publication--Affidavit--Sufficiency. Where it is stated, in an affidavit to obtain service by publication, that a defendant is a nonresident of the state, and service cannot be had upon him within the state, and such affidavit is otherwise sufficient, it is not void or voidable because facts are not stated therein showing that plaintiff, by the use of due diligence, was unable to make service of summons upon the defendant.

2. PROCESS--Service by Publication--Affidavit--Statement of Cause of Action. Where the affidavit for publication does not state directly, inferentially, or in any other way that the action brought is one of those mentioned in section 4276, Wilson's Rev. & Ann. St. 1903, providing in what cases service by publication may be had, the affidavit is fatally defective, and service by publication cannot be obtained thereon.

3. ATTACHMENT--Process--Publication Notice--Sufficiency. In an action for attachment against a non-resident defendant whose land has been levied upon, a publication notice which fails to describe the land attached, and fails to state inferentially, or in any other manner, the nature of the judgment which will be taken, is fatally defective.

4. ATTACHMENT--Claims of Third Persons--Intervener--Grounds of Attack. Any party who, under section 4244, Wilson's Rev. & Ann. St. 1903, intervenes in an attachment proceeding, and claims the property attached or levied upon, can make only such objections to the irregularity of the proceedings as he could make in attacking them in an independent collateral action.

5. JUDGMENT--Collateral Attack--Void Service. A judgment, rendered in an attachment proceeding, wherein the service was by publication which was so defective as to be not merely voidable, but void, is void upon collateral attack, and one who intervenes in an attachment proceeding, and claims the real estate attached, may attack such judgment after it is rendered, or may attack such service before the rendition of judgment, by motion to vacate and set aside such judgment or such service.

6. ATTACHMENT--Discharge--Grounds--Void Service. In an action against a nonresident, in which an order of attachment was issued at the time of the filing of the petition, and on the same date an affidavit for service by publication was filed, and the first publication was made within 60 days from the date of the filing of the petition, but the affidavit for service by publication and the publication notice were so defective as to be absolutely void, held, that a motion to dissolve and discharge the attachment and dismiss the action, made more than eight months after the filing of the petition, levy, and return of the order of attachment, was properly sustained for the reason that the action had not been commenced.

M. L. Holcombe, for plaintiff in error, citing: Raymond v. Nix, 5 Okla. 656; Washburn v. Buchanan (Kan.) 34 P. 1049; Bannister v. Carroll (Kan.) 22 P. 1012; Rapp v. Kyle, 26 Kan. 89; Leppel v. Peck (Colo.) 31 P. 185.

Geo. T. Webster, for defandants in error, citing: Cordray v. Cordray (Okla.) 91 P. 781; Cockley v. Smith (Kan.) 17 P. 156; Wichita Groc. Co. v. Records (Kan.) 19 P. 346; 1 Shinn on Attachment, secs. 217, 218, 344, notes and cases cited; Wilson's Rev. & Ann. St., secs. 4277, 4767, 4244.

Error from District Court, Custer County; James R. Tolbert, Judge.

Action by E. C. Ballew against P. K. Young and another, in which action plaintiff caused an attachment to issue. W. I. Brannon filed a plea of intervention, and moved to dismiss the attachment, which motion was sustained, and the action dismissed, and plaintiff brings error. Affirmed.

This is an action commenced in the district court of Custer county, Okla. T., on June 27, 1907, by E. C. Ballew, plaintiff in error, against P. K. Young and Flora Young, defendants in error, for the recovery of the sum of $ 200, alleged to be due him from the defendants as a real estate commission for the sale of certain real estate. On the same day plaintiff filed his petition he filed an affidavit for attachment, alleging that defendants were nonresidents of the territory of Oklahoma, and that they were disposing of their property with the intent to defraud their creditors. An order of attachment was issued by the clerk, which was placed in the hands of the sheriff on the 28th day of June, 1907, and by the sheriff levied on lots numbered 20, 21, 22, 23, and 24 in block 66 in the town of Clinton, and due return made thereof on the date it was received. At the time the petition was filed a summons was issued, directed to the sheriff of the county, who made due return thereon on June 28th, showing that the defendants could not be found in the county. At the time of filing his petition plaintiff also filed an affidavit to obtain service by publication, and on that date an order of publication was issued by the clerk, which was published in the Custer County News. Defendants failed to appear and answer, or otherwise plead within the time required by law, but wholly made default.

After the institution of the suit defendant in error W. I. Brannon, hereafter referred to as intervener, having been granted leave by the court to interplead, filed his plea of intervention, alleging that he was the owner of the real estate levied upon under the order of attachment, and that he claimed same under a deed executed by defendants to him on June 20, 1907, and recorded by him in the office of the register of deeds of Custer county on July 3, 1907, which was 5 days after the issuance of the attachment writ. He further alleges that plaintiff had notice of his deed and claim to the property at the time the order of attachment was sued out. To this interplea plaintiff filed his verified answer, in which he denies that intervener has any interest or claim in the property levied upon or any valid deed thereto, and, pleading in the alternative, says, that if he has any claim or interest, he acquired such with full knowledge and notice of plaintiff's right and claim in the property under the attachment, with the purpose and object to defeat the rights of plaintiff. Intervener thereupon filed a motion to dissolve the attachment for irregularities in the attachment proceedings. Upon hearing this motion the court sustained same, and dismissed plaintiff's action. From the judgment of the court vacating the attachment and dismissing the action this proceeding in error is brought.

M. L. Holcombe, for plaintiff in error

Geo. T. Webster, for defandants in error

HAYES, J.

¶1 No trial was had upon the issues of fact made by intervener's interplea and plaintiff's answer thereto. The judgment of the court vacating the attachment and dismissing the action was upon intervener's motion to dissolve and set aside the attachment. The grounds of this motion are stated in general and somewhat indefinite terms. The motion in substance is that intervener moves the court to dismiss and vacate the attachment, for the reason that the court was without jurisdiction of either the persons or property attached. The motion further recites that it is based upon the pleadings, records, and files in the cause. The alleged irregularities complained of, and upon which the judgment of the trial court was based, appear from the record to have occurred in the affidavit filed by plaintiff for publication of notice and in the publication notice.

¶2 Plaintiff's original affidavit to obtain service by publication, filed on the day of the filing of his petition, states the names of the parties to the action, and that plaintiff has filed his petition in the district court of Custer county against the defendant for the recovery of the sum of $ 200, due him from the defendants as a commission for the sale of real estate described in his petition; that defendants, and each of them, are not residents of the territory of Oklahoma, and service cannot be had upon them, or either of them, within the territory, although due diligence has been made, and that plaintiff desired to obtain service on the defendants by publication. Plaintiff, with the consent of the intervener, afterwards filed an amended affidavit to obtain service of publication, in which, in addition to the facts stated in the original affidavit, he states that, at the time of the filing of the original affidavit, defendants were the owners of the lots attached, and described them; that an attachment order had been issued in the action by the clerk of the court, which had been levied upon said real estate according to law, on June 28, 1907; that defendants were at the times of the filing of the original affidavit and the amended affidavit nonresidents of Oklahoma, residing in the state of Nebraska; that he knew such facts to be true from letters received from them; that he had made diligent search for defendants in Custer county at the time of the filing of the original affidavit, and knows that they were not in Custer county nor in Oklahoma, and that they have been absent therefrom ever since, and that service of summons could not have been had upon them in Oklahoma.

¶3 These affidavits are attacked upon several grounds. It is first urged that they are void for the reason that they fail to state facts to show wherein due diligence was used to find the defendants. Section 4277, Wilson's Rev. & Ann. St. 1903, being section 79 of the Civil Code, provides:

"Before service can be made by publication, an affidavit must be filed stating that the plaintiff, with due diligence is unable to make service of the summons upon the defendant or defendants to be served by publication, and showing 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."

¶4 While it is stated in the original affidavit that diligence was...