Majors v. Edwards

• Decision Date: 04 January 1893
• Citation: 36 Neb. 56,53 N.W. 1041
• Parties: MAJORS v. EDWARDS ET AL.
• Court: Nebraska Supreme Court

36 Neb. 56

53 N.W. 1041

MAJORS

v.EDWARDS ET AL.

Supreme Court of Nebraska.

Jan. 4, 1893.

Syllabus by the Court.

1. An affidavit for service by publication was in the following form: “Isaac Edwards, being duly sworn, deposeth and saith that he is the attorney for said plaintiff; that said John Edwards is not in the state of Nebraska, and that said Mary Majors is a nonresident of said state of Nebraska, and is now absent from said state; that service of a summons cannot be made within the state of Nebraska on the said defendant, to be served by publication; and that the case is one of those mentioned in the seventy-seventh section of the Code of Civil Procedure; and further saith not.” Held that, as the object of the action was specified in section 77 of the Code, there was not an entire omission to state the material facts showing a right to make service by publication, and therefore it was not void; and that a decree of foreclosure rendered upon constructive service based on such affidavit would be sustained.

2. A mistake in the title of an affidavit is immaterial after judgment.

Error to district court, Douglas county; WAKELEY, Judge.

Action by Mary Majors against Nicholas N. Edwards and others to redeem certain real estate. To a judgment of dismissal, plaintiff brings error. Affirmed.John W. Lytle, for plaintiff in error.

Kennedy, Gilbert & Anderson, Breckenridge, Breckenridge & Crofoot, and Martin Langdon, for defendants in error.

MAXWELL, C. J.

This is an action to redeem lots 9, 10, 11, 12, 13, 14, 15, and 16, in block 27, in Wilcox's second addition to the city of Omaha. The court below found the issues in favor of the defendant, and dismissed the action. It appears from the record that in the year 1878 one John Edwards brought an action in the district court to foreclose a mortgage on said lots; that the sole defendant was the plaintiff in this action; that she was a nonresident of the state, and service was had upon her by publication; that a decree of foreclosure was duly rendered, and the property sold to one Nicholas N. Edwards, who has conveyed to various parties. The sole ground upon which the right to redeem is claimed is that the affidavit for publication is insufficient to give the court jurisdiction. The affidavit is as follows: “In the district court in and for the county of Messar and state of Nebraska. John Edwards vs. Mary Majors. State of Nebraska, County of Douglas--ss.: Isaac Edwards, being duly sworn, deposeth and saith that he is the attorney for said plaintiff; that said John Edwards is not in the state of Nebraska, and that said Mary Majors is a nonresident of said state of Nebraska, and is now absent from said state; that service of a summons cannot be made within the state of Nebraska on the said defendant, to be served by publication; and that the case is one of those mentioned in the seventy-seventh section of the Code of Civil Procedure; and further saith not. ISAAC EDWARDS. Subscribed in my presence, and sworn to before me, this 14th day of October, 1878. WM. H. IJAMS, Clerk.” The objections to said affidavit are set forth in the petition as follows: “That said affidavit does not set forth the nature of the action, nor a description of the property in controversy, nor that said property is in Douglas county, nor that it is an action in which the...