Bantley v. Finney

• Decision Date: 06 February 1895
• Citation: 43 Neb. 794,62 N.W. 213
• Parties: BANTLEY v. FINNEY ET AL.
• Court: Nebraska Supreme Court

43 Neb. 794

62 N.W. 213

BANTLEY

v.FINNEY ET AL.

Supreme Court of Nebraska.

Feb. 6, 1895.

Syllabus by the Court.

1. In the district court of Lancaster county, in 1882, one McWilliams recovered against one Bantley a decree for the specific performance of a contract for the sale of certain real estate. Bantley was a nonresident of the state, and the only service had upon him was by publication. Bantley did not comply with the decree, and McWilliams deposited with the clerk the consideration the court found he was to pay Bantley for the land, took possession thereof, and afterwards conveyed it by warranty deed to one Finney. The affidavit on which the service by publication was based was made and signed by one Webster, McWilliams' counsel, and duly filed; but such affidavit had attached thereto no jurat or certificate of an officer authorized to administer oaths, certifying that Webster had in fact sworn to the affidavit. In 1891, Bantley brought an action against Finney to recover said real estate, alleging in his petition that Finney's claim thereto was based on the decree in McWilliams v. Bantley; that the only service on him in said action was by publication; that the affidavit on which said constructive service was based was not sworn to; and that, therefore, the court had no jurisdiction over him, and its decree was void. Held: (1) That the jurat or certificate of an officer attached to an affidavit is no part of the affidavit itself; (2) that such jurat or certificate, if the officer making it had authority to administer oaths, enables such affidavit to be read in evidence, as the oath of the party whom such officer certifies made such oath; (3) that the affidavit made by Webster did not lose its vitality because of the omission of the clerk to attach thereto his jurat, certifying that Webster had in fact taken said oath; (4) that it was competent for Finney to show by parol that Webster did in fact swear to the affidavit which he filed in the case of McWilliams v. Bantley, at the time of filing such affidavit; (5) that such parol evidence did not tend to vary or contradict the record in the case of McWilliams v. Bantley, but to support it; (6) that whether Webster swore to such affidavit at the time he made and filed it was a question of fact, and might be proved as any other fact, by any competent obtainable evidence.

2. An affidavit is simply a declaration on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths.

3. The essentials of the affidavit required by section 78 of the Code of Civil Procedure, in order that a valid service by publication may be based thereon, are that the affidavit must be in writing, filed in the case where made, and sworn to.

Appeal from district court, Lancaster county; Field, Judge.

Bill by Gotlieb Bantley against Everett Finney and others. Judgment for defendants, and plaintiff appeals. Affirmed.Henry E. Lewis, Albert Watkins, and Dawes, Coffroth & Cunningham, for appellant.

Webster, Rose & Fisherdick, for appellees.

RAGAN, C.

On the 25th day of April, 1882, Gotlieb Bantley was the owner of the S. E. 1/4 of section 24, in township 10 N., and range 7 E., of the sixth principal meridian, in Lancaster county, Neb. On the 19th day of July, 1882, one Richard C. McWilliams brought a suit in equity to the district court of Lancaster county against said Bantley, the petition in which alleged, in substance, Bantley's ownership of said real estate on said 25th day of April, and that on said day Bantley had agreed in writing to sell and convey to him (McWilliams) said real estate on certain terms and conditions, with all of which McWilliams on his part had complied; and the petition prayed for a decree of the court to compel Bantley to specifically perform his contract of sale. Bantley was a nonresident of the state of Nebraska,--was not present in said state, but resided in and was a citizen of the state of Pennsylvania. The only service had upon Bantley in said suit was service by publication, as provided for by sections 77-80 of the Code of Civil Procedure. Bantley made no appearance in the action, either personally or by counsel. And on the 21st of October, 1882, his default was entered by the district court of Lancaster county, and a decree rendered ordering and directing him to convey the above-described premises to McWilliams, and that in default of such conveyance the decree should have the effect of a deed. Bantley did not comply with the decree of the court, and McWilliams, in compliance with the decree, deposited with the clerk of the court the consideration which the decree found McWilliams was to pay Bantley for the land, and thereupon took possession of the real estate, and afterwards conveyed it by warranty deed to one Lorinda Finney. On the 21st day of February, 1891, Bantley brought this suit in equity to the district court of Lancaster county against said Finney, alleging that Finney claimed an interest in said real estate by virtue of the decree, already mentioned, rendered in the case of McWilliams v. Bantley. The prayer of Bantley's petition in this case was that the decree in McWilliams v. Bantley might be adjudged void; that the possession of said real estate might be delivered to him; and for an accounting of the rents and profits of said real estate. The district court found the issues against Bantley, and rendered a decree dismissing his case, from which he has appealed.

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 section 77 of the Code of Civil Procedure; and when such affidavit is filed the party may proceed to make service by publication. In the suit of McWilliams v. Bantley the petition, as already stated, was filed with the clerk of the district court of Lancaster county on the 19th day of July, 1882. On the same day there was filed in the office of said clerk of said court, in said suit of McWilliams v. Bantley, a paper in words and figures as follows:

“In the District Court of Lancaster County, Nebraska. Richard C. McWilliams, Plaintiff, against Gotlieb Bantley, Defendant. Affidavit. State of Nebraska, Lancaster County--ss.: Joseph R. Webster, being first duly sworn, on his oath says: I am the attorney of record of Richard C. McWilliams, plaintiff in the above-entitled cause. On the 19th day of July, A. D. 1882, he filed a petition in the district court of Lancaster county against Gotlieb Bantley, the object and prayer of which is to enforce the specific performance of a written contract for the sale of certain premises, described as the southeast quarter of section twenty-four, township ten (10) north, of range seven (7) east, of sixth principal meridian, made and entered into by and between the said defendant as vendor, by J. P. Walton, his agent duly authorized in writing, and this plaintiff, as vendee, on or about the 15th day of June, A. D. 1882, for sale of said premises, at the price of $2,400, exclusive of agent's commissions, $800 payable in hand, $533 1/3 on or before two years, and two like sums on or before three and four years, respectively, with interest at the rate of 7 per cent. per annum, to be secured by mortgage on said premises, and said plaintiff is absent from the county of Lancaster, and affiant makes this affidavit in his behalf for that reason. Said defendant is a nonresident, and resides at Johnstown, in the state of Pennsylvania, and is absent from the state of Nebraska, and service of summons cannot be made within the state on him, wherefore the plaintiff prays for service by publication. J. R. Webster.

Signed in my presence, and sworn to before me, July, 1882, _____, Notary Public.”

Indorsed: “Dist. Ct., Lancaster. Richard C. McWilliams v. Gotlieb Bantley. Affidavit for Publication. Filed Jul. 19, 1882, A. D. A. D. Burr, D. C. Clerk. J. R. Webster, for Plff.”

This affidavit or paper contained all the averments of fact necessary to authorize McWilliams to make service upon Bantley by publication, and to give the court jurisdiction of Bantley, if such service by publication should be made and proved as provided by sections 79 and 80 of the Code of Civil Procedure. There is no contention here that the averments in the paper or affidavit were not sufficient, both as to substance and form, nor that the publication made and proved in pursuance of such paper or affidavit did not in all respects conform to the statute. But it will be observed that the affidavit or paper, though duly entitled in the case of McWilliams v. Bantley; though it has proper venue; though it is entitled an “Affidavit,” and purports to be an oath made by J. R. Webster, the counsel of McWilliams, signed by Webster, and duly filed in the case by the clerk of the court,--has attached to it no jurat or certificate of the clerk, or any other officer authorized to administer oaths, that such paper or affidavit was sworn to by said Webster before such officer. The argument of the appellant is that, until the affidavit required by section 78 of the Code of Civil Procedure was made and filed in the case of McWilliams v. Bantley, the court could acquire no jurisdiction over Bantley by service by publication. There can be no question as to the correctness of this argument. The court's jurisdiction in that case over Bantley depended upon service by publication first having been made and...