Canaday v. Davis

• Decision Date: 10 April 1909
• Docket Number: 15,935
• Citation: 79 Kan. 816,101 P. 626
• Parties: STEPHEN D. CANADAY et ux. v. EMMA A. DAVIS et al
• Court: Kansas Supreme Court

101 P. 626

79 Kan. 816

STEPHEN D. CANADAY et ux. v. EMMA A. DAVIS et al

No. 15,935

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Gray district court; GORDON L. FINLEY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIMITATION OF ACTIONS--Suit to Defeat a Tax Title--Commencement of Action--Publication Service. Within the meaning of the section of the act relating to taxation requiring a suit to defeat a tax title to be commenced within five years from the time of recording the deed (Gen. Stat. 1901, § 7680), an action against a non-resident who is outside of the state is to be deemed begun where the plaintiff, without causing a summons to be issued, has filed his petition and affidavit for publication and caused a suitable notice to be delivered to the publisher of the only newspaper printed in the county, with directions for its insertion in the next issue thereof, provided such directions are carried out and a proper publication results.

2. LIMITATION OF ACTIONS--Attempt to Commence an Action. If section 20 of the code of civil procedure providing that an action shall be deemed commenced at the date of the first publication, applies to such a case, the steps stated in the foregoing paragraph must be regarded as constituting an attempt to begin it within the meaning of the further provision of the same section that "an attempt to commence an action shall be deemed equivalent to the commencement thereof . . . when the party faithfully, properly and diligently endeavors to procure a service.

Scates & Watkins, and Wheeler & Switzer, for plaintiffs in error.

E. H. Madison, and Harry Brice, for defendants in error.

OPINION

MASON, J.:

The only question here involved is whether an action to set aside a tax deed which was recorded December 10, 1901, was begun within five years from that time. The plaintiffs filed their petition December 7, 1906. They did not cause a summons to issue, for they knew the defendants were non-residents and were outside of the state, but the next day they filed an affidavit for service by publication, and prepared and delivered to the publisher of the only newspaper printed in the county a notice in proper form which appeared in the next issue of the paper, December 13.

Section 141 of the act relating to taxation (Gen. Stat. 1901, § 7680) requires a suit or proceeding to defeat a conveyance of land for taxes to be commenced within five years from the time of recording the deed. Section 20 of the code of civil procedure, which relates to the time of commencing civil actions, reads:

"An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days."

There is good ground for arguing that the section quoted does not apply to this case. If it does it is merely by implication or analogy and not by its express terms, for it purports to say only when an action shall be deemed commenced within the meaning of the article in which it is found, and which relates to the general statutes of limitation. The requirement that suits to defeat tax titles must be brought within five years is a special limitation, found not in the code of procedure but in the act relating to taxation. On this account it is held not to be subject to the usual exceptions, and is not affected...