City Nat. Bank v. Sparks

• Decision Date: 10 August 1915
• Docket Number: Case Number: 5078
• Parties: CITY NAT. BANK v. SPARKS.
• Court: Oklahoma Supreme Court

1915 OK 603

151 P. 225

50 Okla. 648

CITY NAT. BANK v. SPARKS.

Case Number: 5078

Supreme Court of Oklahoma

Decided: August 10, 1915

Syllabus

¶0 1. ATTACHMENT--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 manner, the nature of the judgment which will be taken, is fatally defective.

2. SAME--Affidavit for Publication--Sufficiency. A failure to make proper averments in an affidavit for publication of such facts as show that the case is one of those provided for by section 4276. Wilson's Rev. & Ann. St. 1903, and section 4722, Harris-Day Code, renders it insufficient to support service by publication.

3. APPEARANCE--What Constitutes--Effect--Waiver of Irregularities--"General Appearance." Generally speaking, any plea or proceeding raising questions nonjurisdictional and involving the merits constitutes a "general appearance," and waives all questions as to the regularity of the service, whether made before or after judgment.

4. SAME--"Special Appearance"--Effect--Jurisdictional Questions. Any plea or proceeding which raises jurisdictional questions only is a "special appearance," and the mere fact of filing the same does not give the court jurisdiction over the person of the defendant; but a party who denies the jurisdiction of the court over his person must first present that single question.

5. APPEARANCE--General Appearance--What Constitutes. Where a pleader urges jurisdictional and nonjurisdictional grounds as a basis for relief, he enters a general appearance; and this is true when done at any stage of the proceedings.

6. PROCESS--Affidavit for Publication -- Cure of Defect--Amendment. Where the jurisdictional facts necessary to warrant service by publication were in existence before the commencement of the action, and the affidavit for publication is defective only in that it states inferentially, or in any other way, any matter required by statute to be alleged therein, it is amendable, even after judgment; but where there is a total want of averment in the affidavit of some material fact required by the statute, the service is void, and the defect cannot be cured by amendment.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Motion by O. G. Sparks to set aside judgment recovered by the City National Bank in a cause in which the latter was plaintiff and the former was defendant. Judgment sustaining motion, and plaintiff brings error. Affirmed.

H. A. Smith, for plaintiff in error.

W. C. Stevens, for defendant in error.

BOWLES, C.

¶1 Plaintiff in error, plaintiff below, brought suit on December 12, 1903, against defendant in error, defendant below (hereinafter referred to as plaintiff and defendant, respectively) to recover judgment upon a promissory note executed by defendant to plaintiff. In said suit, plaintiff caused attachment to issue and by virtue of said attachment writ lots 31 and 32 in block 62 were seized, and afterwards lot 31 was sold. Lot 31 having sold for a sufficient amount to satisfy the judgment and costs, lot 32 was released. Service was had upon defendant by publication.

¶2 On March 22, 1904, Mary E. L. Sparks, wife of defendant, filed her interplea in the attachment proceeding, claiming title to and ownership of the attached property. The issue raised by the interplea was heard by the court November 16, 1904. Judgment upon the interplea was rendered against interpleader and in favor of plaintiff. Upon the same day the court found that the defendant was indebted to plaintiff in the sum prayed for in the petition, sustained the attachment, and ordered the property sold, which was afterward done.

¶3 On October 10th Mary E. L. Sparks filed her motion to set aside the sale. This motion was heard and overruled. From the refusal of the court to set aside the sale, Mary E. L. Sparks appealed to the Supreme Court, where said judgment of the court below was affirmed (21 Okla. 827). On the 30th day of October, 1908, the defendant, O. G. Sparks, filed a motion to set aside the judgment rendered on the 16th day of November, 1904, as being null and void on account of defective service by publication. On the 6th day of November, 1912, this motion was sustained, and the judgment set aside; hence this appeal.

¶4 The contentions of plaintiff in error relied on for a reversal of this case will be considered under two heads: First. Did the court below have jurisdiction of the defendant in error? Second. Did defendant, by a general appearance or otherwise, waive the defects in the service by publication, if any there were, and thereby give the court jurisdiction of the person of the defendant? Let us consider these propositions in their order.

¶5 The service upon the defendant was by publication, and the affidavit to obtain service by publication was as follows:

"TERRITORY OF OKLAHOMA, COMANCHE COUNTY--SS.:

"In the District Court for Said County and Territory. The City National Bank of Lawton, O. T., Plaintiff, v. O. G. Sparks, Defendant. Affidavit to Obtain Service by Publication. F. M. English, of lawful age, being duly sworn, says: That he is the agent of and cashier for the above-named plaintiff, and that on the 12th day of December, 1903, said plaintiff filed in the district court a petition against said defendant O. G. Sparks, showing that the said defendant is indebted to the plaintiff upon a certain promissory note, dated November 29, 1901, for one hundred fifty dollars and interest from 29th day of December, 1901. Affiant further says that the said defendant, O. G. Sparks, is a nonresident of the Territory of Oklahoma, and that service of a summons cannot be made on said defendant, O. G. Sparks, within the said Territory of Oklahoma, and that the said plaintiff wishes to obtain service upon the said defendant by publication.

"F. M. ENGLISH.

"Subscribed and sworn to before me this 14th day of December, 1903.

"[Seal.] N.E. SISSON, District Clerk."

Indorsed:

"Affidavit for service by publication. Filed Dec. 14, 1913.

N. E. SISSON, Clerk."

¶6 Was this sufficient? Clearly not. The statute provides, before service by publication can be had:

"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." (Rev. Laws 1910, section 4723.)

¶7 This section requires that the affidavit for publication shall show that the case is one of those mentioned in the preceding section, which is as follows:

"Service may be made by publication in either of the following cases: In actions brought under sections 4671 and 4672, where any or all of the defendants reside out of the state, or where it is stated in the affidavit for service by publication that the plaintiff with due diligence is unable to make service of summons upon such defendant or defendants within the state; in actions brought to establish or set aside a will, where any or all of the defendants reside out of the state; in actions to obtain a divorce where the defendant resides out of the state; in actions brought against a nonresident of the state, or a foreign corporation, having in this state property or debts owing them, sought to be taken by any of the provisional remedies, or to be appropriated in any way; in actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a nonresident of the state or a foreign corporation; and in all actions where the defendant, being a resident of this state, has departed therefrom, or from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of a summons, or keep himself concealed therein with the like intent." (Rev. Laws 1910, section 4722.)

¶8 These sections of the statute have been before this court, and the law relative thereto fully settled and put at rest. In Ballew v. Young, 24 Okla. 182, 103 P. 623, 23 L. R. A. (N. S.) 1084, Justice Hayes, in a well-considered opinion, where the authorities are gone into and fully discussed, holds:

"A failure to make proper averments in the affidavit [for publication] of such facts as to show that the case is one of those provided for by section 4276 [section 4722, Harris-Day Code] renders it insufficient to support service by publication."

¶9 The affidavit to obtain service by publication in the case at bar is absolutely silent as to the necessary allegations required by the statute. It in no manner sets out the facts necessary to indicate the character of the case or the judgment sought, directly or inferentially.

¶10 Where the jurisdictional facts necessary to warrant service by publication were in existence at the commencement of the action, and the affidavit for publication is defective only in that it states inferentially, or in any other way, any matter required by statute to be alleged therein, it is amendable, even after judgment; but where there is a total want of averment in the affidavit of some material fact required by statute, as in this case, the service is void and the defect cannot be cured by amendment.

¶11 In this case the notice of publication does not describe the property attached, or the nature of the judgment the plaintiff seeks to secure. Section 4725, Harris-Day Code (which is identical with section 4275, Wilson's Statutes, in force at the time of the commencement of this action) reads as follows:

"The publication must be made three consecutive weeks, in some newspaper printed in the county

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