Leigh v. Green

• Decision Date: 19 June 1901
• Parties: LEIGH v. GREEN.
• Court: Nebraska Supreme Court

62 Neb. 344

86 N.W. 1093

LEIGH

v.GREEN.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. Where service is had by publication, jurisdiction attaches, although the affidavit for service is sworn to before the filing of the petition, provided the interval between the two acts is so brief that no presumption can fairly arise of a change in the jurisdictional facts set forth in the affidavit.

2. An interval of two days held too short to give rise to such presumption.

3. Where the facts required in an affidavit are of such a character that positive knowledge, on the part of affiant is impossible, such affidavit may be made on information and belief.

4. An affidavit for service by publication is sufficient if made upon information and belief.

5. An affidavit for service by publication is not for the information of the party to be served, but to enable the court to determine whether the action is one in which jurisdiction may be acquired by such service.

6. When such affidavit is sufficient to enable the court to determine whether the action is one of which jurisdiction may be acquired by service of publication, service based thereon is valid.

7. Affidavit examined, and held sufficient to give the court jurisdiction.

8. An attaching creditor held not to be an owner, within the meaning of section 4, art. 5, c. 77, Comp. St.

9. The holder of a tax lien may bring an action for the foreclosure in a state court, and prosecute the same to a decree and sale of the land, notwithstanding the pendency of an action between other parties in the federal courts wherein such lands have been levied upon under an order of attachment.

Appeal from district court, Knox county; Robinson, Judge.

Action by Alvin L. Leigh against H. S. Green. Judgment for plaintiff, and defendant appeals. Reversed.

Reed & Gross, James McCabe, and W. R. Green, for appellant.

J. C. Crawford, McNish & Oleson, Anderson & Keefe, and Woolworth & McHugh, for appellee.

ALBERT, C.

On the 24th day of November, 1880, Erwin Davis held the record title to certain lands in Knox county. On the date mentioned, Algernon S. Patrick commenced an action in the district court of that county, and procured an order of attachment to be levied on said land. On the 18th day of April, 1882, the case was removed to the United States circuit court, wherein a judgment was rendered in favor of the plaintiff on the 21st day of January, 1890, and an order made for the sale of the lands for the satisfaction thereof. In pursuance of said order, on the 15th day of May, 1894, the lands were sold to Lionel C. Burr by the United States marshal, whose deed to Burr therefor was filed for record in the office of the clerk of Knox county on the 26th day of May, 1894. On the day the deed was executed, Burr conveyed the premises to J. C. Crawford and R. C. Peters by warranty deed, which was recorded on the 28th day of May, 1894. On the 23d day of May, 1894, Crawford and Peters conveyed the land to Alvin L. Leigh, the plaintiff in this case. On the 28th day of December, 1882, and while said attachment proceedings were pending, a warranty deed to said lands, purporting to have been executed by Erwin Davis to Henry A. Root on the 8th day of October, 1880, was filed for record in the office of the county clerk of Knox county. On the 12th day of May, 1894, in an action pending in the district court of Douglas county, wherein Algernon S. Patrick was plaintiff and Erwin Davis, Henry A. Root, J. N. H. Patrick, and J. M. Woolworth were defendants, a decree was entered whereby the said deed from Davis to Root was canceled and set aside as fraudulent and void as against the plaintiff in that case, and whereby the title to said land was quieted and confirmed in said plaintiff as against said Root. In 1891, several actions were brought in the district court of Knox county, wherein the Farmers' Loan & Trust Company was plaintiff, and Henry A. Root and different subdivisions of the land in controversy were defendants, for the foreclosure of certain tax liens, which actions so taken together involved the title to the land in controversy in this suit. In the same year a decree of foreclosure was entered in each case, and an order made directing the sale of said subdivisions, respectively, for the satisfaction of the amount found due by the respective decrees. In pursuance of these several decrees and orders the lands were sold by the sheriff of that county to H. S. Green, the defendant in the present action, and deeds of conveyance therefor were duly executed and delivered to said purchaser by the sheriff. The plaintiff in the present case claims title to the lands, basing his claim of title on the attachment proceedings hereinbefore mentioned. The defendant also claims title thereto, basing his claim of title on the proceedings had for the foreclosure of the tax liens. The present action was brought by the plaintiff, Alvin L. Leigh, against the defendant, H. S. Green, to quiet his title to the land in controversy. From a decree in favor of the plaintiff, the defendant prosecutes an appeal to this court.

From the foregoing statement, it will be seen that both parties trace their title to Erwin Davis. The sole question to be determined in this case is whether the plaintiff is concluded by the proceedings had in the district court of Knox county for the foreclosure of the tax liens, by virtue of which the defendant claims title to the lands in controversy. The plaintiff assails those proceedings upon three grounds: (1) That the service was had by publication, and the affidavits therefor were not sufficient to authorize service by publication; (2) that there was no case made for proceeding against the land in any of said foreclosure proceedings, without impleading Algernon S. Patrick, who at the time said proceedings were brought had an attachment lien on the lands, for the satisfaction of which the land afterwards sold; (3) that the proceedings to foreclose said liens were had during the time the land in controversy was under attachment in an action pending in the circuit court of the United States, and for that reason the proceedings to foreclose the tax liens were void.

The actions for the foreclosure of the tax liens were brought under article 5 of chapter 77 of the Compiled Statutes. Section 4 of that article is as follows: “Service of process in causes instituted under this chapter shall be the same as provided by law in similar causes in the district courts, and where the owner of the land is not known, the action may be brought against the land itself, but in such case the service must be as in the case of a nonresident; if the action is commenced against a person who disclaims the land, the land itself may be substituted by order of court for the defendant, and the action continued for publication.” In each of the foreclosure cases the subdivision of the land to be affected thereby was made a party, as provided by the section just quoted, and service was had by publication. The affidavit in each case, except as to the land described, which varied according to the subdivision made a party, was as follows:

“In the District Court of Knox County, Nebraska. Farmers' Loan & Trust Company, Plaintiff, vs. Henry A. Root and N. E. 1/4, Sec. 27, Twp. 31, Range 3 West, 5th P. M., Defendants. Affidavit for Publication of Notice. State of Iowa, Woodbury County--ss.: I, M. J. Sweeley, being first sworn, do state that I am the attorney for the plaintiff above named; that this case is one of those named in section 77, title V., of the Code of Civil Procedure of the State of Nebraska, and is an action relating to real property in said state, in which the defendants have or claim to have a lien or interest, actual or contingent, and the relief demanded consists, wholly or partially, in excluding defendants from any interest therein; that the defendant Henry A. Root is a nonresident of said state of Nebraska; and that service of summons cannot be made on him within said state. I further state that the owner of the real estate involved in said action and above described is not known, all of which I verily believe to be true. [Signed] M. J. Sweeley.

Subscribed and sworn to before me this 28th day of September, 1891. [Seal.] L. Greenwood, Notary Public.”

The plaintiff insists that the affidavits were insufficient, and for that reason the court acquired no jurisdiction. One objection urged against the affidavits is that they were sworn to some two days before the petitions were filed in the respective cases. The argument on this point, as we understand it, is that, between the making of the affidavit and the filing of the petition, the condition might have changed so that service might have been had on the defendant in this state, or in some other way, so that the affidavit could not have been truthfully made at the time of filing. It is clear that the law must permit some interval to elapse between the making and the filing of the affidavit, because, strictly speaking, the two acts could not be simultaneous. That being true, the only question that can arise is what length of time it will permit to elapse between the two acts. The statute is silent on the subject; hence the inference is warranted that it will permit a reasonable time. Just what will be regarded as a reasonable time this court has not decided. However, in Armstrong v. Middlestadt, 22 Neb. 711, 36 N. W. 151, it was held that an affidavit made one day before the petition was filed was sufficient. But in that case the court expressly disclaims any intention to go beyond the facts, and of holding that an affidavit made several days before the commencement of the action would be sufficient. In our opinion, when the petition is filed within such time after making the affidavit that no presumption could fairly arise that the state of facts had changed in the interval, it is sufficient. Crombie v. Little, 47 Minn. 581, 50 N. W. 823;Snell...