Long v. Fife

• Decision Date: 10 January 1891
• Citation: 25 P. 594,45 Kan. 271
• Parties: JULIETTE U. LONG et al. v. J. O. FIFE
• Court: Kansas Supreme Court

25 P. 594

45 Kan. 271

JULIETTE U. LONG et al. v. J. O. FIFE

Supreme Court of Kansas

January 10, 1891

Error from Wyandotte District Court.

THE case is stated in the opinion.

Judgement affirmed.

H. M Merriwether, for plaintiffs in error.

John A Hale, for defendant in error.

HORTON C.J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the first day of September, 1886, J. O. Fife filed a petition in the district court of Wyandotte county, asking judgment against Mrs. M. A. Hays, for $ 100 for attorney's fees. A summons was issued on the same day, and returned on the third day of September, 1886, "not found." On the same day on which the petition was filed, an affidavit for publication was filed in the clerk's office of the court, which, omitting caption, is in words and figures as follows:

"J. O. FIFE, Plaintiff, V. MRS. M. A. HAYS, Defendant. -- J. O. Fife, of lawful age, being by me first duly sworn according to law, upon his oath says, that he is the plaintiff in the above-entitled cause; that defendant is the owner of lot number 6, in block 79, and lot number 42, in block 49, in the old city of Wyandotte, now Kansas City, Wyandotte county, Kansas; that this suit is brought for the purpose of' recovering the sum of $ 100 due affiant from defendant above named; that defendant is a non-resident of the state of Kansas, and that service of summons cannot be made on said defendant within the state of Kansas. J. O. FIFE.

"Subscribed and sworn to before me this 1st day of September, 1886. L. C. TRICKEY, Clerk District Court."

On the same day on which the petition was filed, an attachment affidavit was filed, and on the 3d day of September, 1886, the real estate mentioned was attached, pursuant to the affidavit and the order issued thereon. Proceeding upon the affidavit, publication was made and filed on January 8, 1887. The publication notice, which was published for a sufficient time in the Wyandotte Gazette, a weekly newspaper of general circulation in Wyandotte county, Kansas, omitting caption, was as follows:

"M. A. Hays, defendant above named, will take notice that she has been sued in the district court of Wyandotte county, Kansas, by J. O. Fife, plaintiff above named, for the sum of $ 100, and interest thereon at the rate of 7 per cent. per annum from April 1, 1885, and that defendant must answer plaintiff's petition on or before the 25th day of October, 1886, or said petition will be taken as true, and judgment rendered in favor of plaintiff against defendant for said sum and costs, and that lot 42, in block 49, and lot 6, in block 79, all in Wyandotte, now part of Kansas City, Wyandotte county, Kansas, the property of defendant, and heretofore by the sheriff of Wyandotte county attached, will be sold, and the proceeds thereof applied toward the payment of said judgment and costs. (Signed) J. O. FIFE, Plaintiff,

By JAS. F. GETTY, Att'y for Plaintiff."

On the 19th day of January, 1887, the defendant failing to appear, judgment was rendered for plaintiff in the usual form, and on the 31st day of May, 1887, the sheriff of the county sold the real estate to James Birmingham. On the 6th day of June, 1887, the sheriff's deed was executed and the same was filed for record in the office of the register of deeds of the county of Wyandotte on the 13th of June, 1887. On the 28th day of December, 1886, the real estate in question was sold by Mrs. M. A. Hays and husband to Wingate Jackson. The deed was recorded December 30, 1886. On the 6th day of June, 1887, Jackson sold lot 6, block 79, to H. M. Merriwether, which deed was recorded June 11, 1887, and on June 9, 1887, Merriwether sold lot 6, block 79, to Juliette U. Long. This deed was recorded June 11, 1887. On the 21st day of September, 1887, Wingate Jackson and Juliette U. Long filed their motion to vacate and set aside the judgment, on the ground that the affidavit for publication was essentially defective; that the...