Pike v. Kennedy

• Decision Date: 15 November 1887
• Citation: 15 P. 637,15 Or. 420
• Court: Oregon Supreme Court
• Parties: PIKE v. KENNEDY and others.

15 P. 637

15 Or. 420

PIKE v. KENNEDY and others.

Supreme Court of Oregon

November 15, 1887

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Williams & Williams and W. Scott Beebe, for appellant.

Gearin & Giloert and Dolph, Bellinger, Mallory & Simon, for respondents.

LORD C.J.

This was an action in ejectment to recover lot 8, in block 183, in Couch's addition to the city of Portland, Oregon. The plaintiff bases his right to recover upon the invalidity of certain proceedings in a foreclosure suit, which, he claims, rendered the decree therein void. That suit was for a foreclosure of a mortgage executed by the plaintiff, Pike, and his wife, to Klosterman Bros. upon the property sought to be recovered in this action. It is admitted that if the decree is void, the title to the land in controversy never passed out of the plaintiff by force of that proceeding, and that he is entitled to recover in the present action. The invalidity insisted upon arises out of an order for the publication of a summons, and the specific objections are (1) that it does not appear from the affidavit upon which the order of publication was based that the defendants had any property in the state of Oregon. The provisions of the Code as to this requirement are found in section 55, subd. 3, and § 56 Deady's Code. The affidavit shows that the plaintiff Pike, and his wife, to secure the payment of a certain note particularly described, executed a mortgage to Klosterman Bros. upon "lot 8, in block 183, in Couch's addition to the city of Portland, in Multnomah county, Oregon," the property described in and for which the present action is brought. These facts show, so to speak, by the mouths of Pike and wife, as alleged in the affidavit, that they did have property in the state, and had voluntarily created a lien upon it, and that they agreed that, if the debt secured by the mortgage was not paid when due, the realty described might be sold in discharge of the indebtedness. In Belmont v. Cornen, 82 N.Y. 257, the affidavit for an order of publication in a foreclosure suit, as here, was as follows: "That this action is brought to foreclose a mortgage made and executed by the said defendants, Peter P Cornen, and Lydia, his wife, to the said plaintiff, to secure the sum of $60,000, with interest on real property in the city and county of New York, in this state." These facts do not allege property in the defendants and within the state. (2) The second objection is more serious and difficult of disposal. It is in effect that it does not appear from the affidavit that the defendants could not be found within the state, or that any diligence had been used to ascertain their whereabouts, or where they were at the time the affidavit for the order of publication was made. Our Code provides that "when service of the summons cannot be made, as prescribed in the last preceding section, and the defendant, after due diligence, cannot be found within the state, and when that fact appears by the affidavit to the satisfaction of the court or judge thereof, *** such court or judge thereof shall grant an order that the service by publication of a summons, in either of the following cases: *** (3) When the defendant is not a resident of the state," etc. Deady's Code, p. 152, § 55. This provision is like section 139 of the New York Code, from which it was taken. The construction of this provision of our Code has been the subject of much judicial discussion, and its meaning is not clearly expressed.

In an early case, Vernan v. Holbrook, 5 How.Pr. 4, PARKER, J said: "The proceeding is authorized, when it shall appear that the defendant, after due diligence, cannot be found within this state. The meaning of this section is not clearly expressed, but I do not think it was intended that an attempt must be first made to serve process where the defendant is a non-resident. The fact of non-residence is evidence that the defendant could not, after due diligence, be found within the state, and so it was held in Rawdon v. Corbin, 3 How.Pr. 416." But in Wortman v. Wortman, 17 Abb.Pr. 70, it was held that the fact of non-residence of the defendant is insufficient to authorize an order for the publication of a summons; SUTHERLAND, J., saying "that it must appear by affidavit, to the satisfaction of the court or judge, that the person on whom the service of the summons is to be made cannot, after due diligence, be found within the state; for the section of the Code containing such requirement assumes that though the defendant be a non-resident, yet that perhaps he may be found within the state, and plainly contemplates that some effort shall be made to find and serve the defendant within the state, though he or she be a non-resident." This case decides specifically that non-residence of the defendant is insufficient, and does not dispense with effort to find the defendant within the state, and the later decisions adhere to this conclusion. In Carleton v. Carleton, 85 N.Y. 314, the affidavit for an order of publication was as follows: "The defendant has not resided within the state of New York since March, 1877, and deponent is informed and believes that the defendant is now a resident of San Francisco, Cal.," and the court, by MILLER, J., said: "The appeal presented involves the question whether an affidavit showing non-residence, without proof where the defendant actually was at the time, makes out a case within the provisions of section 139, herein cited. The affidavit states that the defendant has not resided in the state for some time, and on information and belief it is not known where he does reside. There is no statement, however, that due diligence has been used, or that any effort whatever has been made to find him, and that he cannot be found within the state. It is a simple allegation of non-residence, from which fact the court is asked to infer that due diligence had been used. The Code...