Cole v. Hoeburg

• Decision Date: 04 March 1887
• Parties: JOHN COLE v. MARTHA HOEBURG
• Court: Kansas Supreme Court

13 P. 275

36 Kan. 263

JOHN COLE v. MARTHA HOEBURG

Supreme Court of Kansas

March 4, 1887

Error from Clay District Court.

ACTION by Martha Hoeburg against John Cole, to recover $ 5,000 damages for an alleged breach of a promise of marriage, and for seduction under the promise aforesaid. January 22, 1885 judgment for plaintiff and against defendant for $ 5,000, as upon a default and without the introduction of any evidence. To reverse this judgment, the defendant brings the case to this court. The opinion contains a sufficient statement of the facts.

Judgment affirmed.

Harkness & Godard, for plaintiff in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought January 30, 1884, by Martha Hoeburg against John Cole, for the recovery of $ 5,000 damages for an alleged breach of a promise of marriage, and for seduction. No cost-bond was filed in the case, but in lieu thereof the plaintiff made a poverty-affidavit, which was defective in not stating that her cause of action was just; and for this reason the original summons was set aside, upon the ground that it had been improvidently issued. Afterward, and on October 23, 1884, the plaintiff filed another poverty-affidavit, which seems to be in proper form and sufficient in every particular, unless it is insufficient because it was sworn to before a justice of the peace and not before the clerk of the district court. On the same day the plaintiff also filed an affidavit for service by publication, which reads as follows:

"The plaintiff in the above-entitled action makes oath that on the 30th day of January, 1884, she filed her petition in the above-entitled action and had summons issued, but the service of summons was set aside by the court, and at the time the same was issued said defendant was a resident of Clay county, Kansas, and ever since that date the defendant has not been a resident of the state of Kansas, and is not now a resident of the state of Kansas, and that he departed therefrom and the county of Clay in said state with the intent to avoid the service of summons in said action, and that service of summons cannot be had on him in said state of' Kansas; and that this action is one embraced within the true intent and meaning of § 72 of article 6, of the code of civil procedure, owing to the defendant, who was a resident of the state at the time this suit was commenced, having departed therefrom to avoid the service of summons in this case."

Thereupon, service of summons by publication was made, and the defendant at the next term of court appeared specially, and moved to set aside such service for the following reasons:

"1. The said service by publication was improvidently made, and without any authority whatever.

"2. No security for costs has been given by the plaintiff herein.

"3. The poverty-affidavit made by plaintiff in lieu of security for costs, is not verified according to law, and was not made or filed in this court.

"4. The affidavit for service by publication does not show that this action is one of those specified in § 72 of the civil code in which service may be made by publication, and said affidavit is not sufficient to entitle plaintiff to make service by publication upon defendant."

This motion was overruled on January 17, 1885, and the defendant excepted, and the court at the same time "further ordered that said defendant have leave to renew said motion unless a sufficient affidavit of poverty is filed by plaintiff herein on or before January 21, 1885." The defendant made no further appearance in the case. On January 19, 1885, the plaintiff verified her second poverty-affidavit by her own oath, taken before the clerk of the district court; and also on the same day filed another poverty-affidavit in form sufficient and sworn to before the clerk of the district court. On January 22, 1885, judgment was rendered in favor of the plaintiff and against the defendant for $ 5,000, as upon a default and without the introduction of any evidence; and to reverse this judgment the defendant, as plaintiff in error, brings the case to this court.

It is claimed that the court below erred in refusing to set aside the service of summons by publication, upon the ground that the poverty-affidavit was not "made before the clerk" of the district court, as provided by § 1, ch. 121 of the Laws of 1875; (Comp. Laws of 1879, P4113, page 681;) it was sworn to before a justice of the peace, but was filed with the clerk of the district court. Now there is no statute that in terms requires that security for costs shall be given before service of summons by publication is made. The statute simply provides that "before the clerk shall issue summons there shall be filed in his office" the cost-bond; and it does not say that before service of summons by publication can be made the cost bond shall be filed. And if no cost-bond is necessary where service by publication is had, of course an affidavit of poverty is unnecessary. And further, is not an affidavit filed with the clerk of the district court, but sworn to before some other officer, just as good as an affidavit filed with such clerk and sworn to before him? The statute does not in terms say that the affidavit shall be sworn to before the clerk. It simply says, "that in any case where the plaintiff or plaintiffs have a just cause of action against the defendant or defendants, by reason of his, her or their poverty, is or are unable to give such security for costs, on affidavit of the plaintiff or plaintiffs made before the clerk that such is the fact no bond shall be required." Now may not an affidavit sworn to before some proper officer, and filed with the clerk, be considered as an affidavit made before the clerk? But even if either a cost-bond or a poverty-affidavit sworn to before the clerk is required, and no cost-bond is given, and if the poverty-affidavit is not sworn to before the clerk, but is sworn to before some other officer authorized to administer oaths, and service by publication is then made, the service would not be void. It would at most be only voidable, and it would be valid until set aside; and whether it should ever be set aside or not, would depend upon the question whether justice would be best subserved by setting it aside or not. In the present case, the service by publication was never set aside; and as the plaintiff properly amended her poverty-affidavit, and with leave of the court made and filed another poverty-affidavit, in all particulars sufficient, we think that in justice the service should not have been and should not be set aside for want of a cost-bond or of a poverty-affidavit.

It is further claimed that the service by publication is fatally defective in not stating facts sufficient to show that the action is one of those mentioned in § 72 of the civil code, and the cases of Claypoole v. Houston, 12 Kan. 324, and Shields v. Miller, 9 id. 390, 398, are cited as authority for this claim. These cases, however, are not in point. The affidavit in the present case is very dissimilar to the affidavits made in those cases. That portion of § 72 which applies to this case reads as follows:

"SECTION 72. Service may be made by publication in either of the following cases: . . In all actions where the defendant, being a resident of the state, has departed therefrom or from the county of his residence with intent . . to avoid the service of summons."

Now the affidavit and the record in the present case show that when this action was commenced the defendant was a resident of Clay county, Kansas, where the action was commenced; that service of summons was made upon him in that county, but that such service was set aside for an irregularity, and that after the commencement of the action the defendant departed from the county of his residence and from the state, with the intent to avoid the service of summons. This brings the case at least within the spirit, if not within the letter of § 72 of the civil code. The defendant was a resident of the state. The action was commenced. Service was made upon him. It was irregular....