Cackley v. Smith
| Citation | 17 P. 156,38 Kan. 450 |
| Parties | WILLIAM CACKLEY v. SAMUEL J. SMITH |
| Decision Date | 11 February 1888 |
| Court | United States State Supreme Court of Kansas |
Error from Rice District Court.
THE opinion states the case.
Judgment reversed and cause remanded.
M. A Thompson, for plaintiff in error.
Brinckerhoff White & Brinckerhoff, for defendant in error.
OPINION
Samuel J. Smith brought an action in the district court of Rice county against William Cackley, to recover upon a promissory note given for $ 915.95. He filed an affidavit stating that Cackley was a non-resident of Kansas, and procured the issuance of an order of attachment. An affidavit was also filed as a basis for service by publication, following which a service by publication was attempted. Real estate of Cackley, appraised at $ 1,500, was attached, and at the September term, 1885, of the court, a judgment was rendered in favor of Smith for the amount claimed. The attachment was confirmed, and the property seized was ordered to be sold. Within a year Cackley appeared for the first time, and moved the court to vacate the judgment and proceedings for several reasons, the principal ground being the insufficiency of the published notice for constructive service. The motion was not allowed, and on this ruling error is assigned.
The case turns upon the sufficiency of the notice, which, omitting the caption, title, and signature, is as follows:
"Said defendant, William Cackley, will take notice that he has been sued in the above-named court upon one promissory note, the demand being for $ 915.95, and interest thereon at 8 per cent. per annum from April 20, 1885, and must answer the petition filed therein by the said plaintiff on or before the 25th day of July, 1885, or said petition will be taken as true, and judgment for plaintiff in said action for said sum, and the attachment therein granted, will be rendered accordingly."
Within the decisions already made by this court, the notice must be held to be defective. The publication fails to describe the land that was attached. While it states that an attachment has been granted in the case, it does not in fact show that any property had been levied upon. There being no personal service, jurisdiction could be acquired only through attachment and publication. In such a case, if no property was levied on, no effectual order or judgment could be rendered; and where a levy is made, the amount of property attached fixes the limit of recovery. A judgment in an action by attachment resting only on constructive service, reaches no property except that...
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...notice should contain a description of the land, and failing to do so renders it defective. Cohen v. Trowbridge, 6 Kan. 385; Cackley v. Smith, 38 Kan. 450, 17 P. 156. And the publication notice fails to contain a description of the real estate attached, and omits entirely to state the natur......
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