Reister v. Land

• Decision Date: 04 March 1904
• Citation: 76 P. 156,1904 OK 40,14 Okla. 34
• Parties: CONRAD REISTER AND ELZIABETH REISTER v. JAMES L. LAND.
• Court: Oklahoma Supreme Court

1904 OK 40

76 P. 156

14 Okla. 34

CONRAD REISTER AND ELZIABETH REISTER v. JAMES L. LAND.

Supreme Court of Oklahoma

Decided: March 4, 1904

Syllabus

¶0 1. AFFIDAVIT IN ATTACHMENT--Amendable. An affidavit in attachment which is not void, but merely defective, may be amended the same is any other pleading, process or proceeding in the case.

2. AFFIDAVIT FOR PUBLICATION SERVICE. An affidavit for publication service which states defectively but inferentially the things required by the statute, is voidable but not void, and the defect may be cured by amendment.

3. FINDINGS OF FACT. This court will not reverse the decision of the district court on a finding of fact, where the evidence reasonably tends to support the finding.

STATEMENT OF FACTS.

This case was commenced in the district court of Payne county, Oklahoma Territory, on the 13th day of January, 1902, by the defendant in error, against the plaintiffs in error, to recover damages in the sum of five hundred dollars, for a breach of covenant in a warranty deed. Plaintiffs in error being non-residents of the Territory of Oklahoma, service was had upon them by publication. Affidavit for service by publication was filed with the clerk of the district court on the same day petition was filed, and on the same day defendant in error filed affidavit in garnishment; on the 13th day of January, 1902, the clerk of the district court issued a signed publication notice, to Conrad Reister and Elizabeth Reister, defendants, and on the same day the clerk of the district court issued summons in garnishment to the First National Bank of Stillwater, Oklahoma, and on the 17th day of January, 1902, W. E. Hodges, as cashier of said bank, garnishee, filed answer, alleging that said garnishee had in its possession and under its control personal property belonging to Conrad Reister as follows, to wit: Cash in the sum of $ 36.75 and one promissory note for the sum of $ 23.45. On the 27th day of February, 1902, the defendants filed motion to challenge the jurisdiction of the court. On the 16th day of May, 1902, plaintiff, by leave of court, filed amended affidavit for service by publication, and on May 29th, 1902, plaintiff, by leave of court filed in said cause amended affidavit in garnishment. On the 29th day of May, 1902, the district court overruled motion of defendants to the jurisdiction of the court, and granted the defendants time to answer. On May 29th, 1903, answer was filed by the defendant, on the same day, plaintiff filed reply. Afterwards this case came on for trial; a jury being waived by both parties, the cause was tried to the court. After hearing the testimony, the court finds for the plaintiff, and renders judgment on said finding for $ 125.50, to which finding and judgment the defendants except, and bring the cause here for review.

Error from the District Court of Payne County; before Jno. H. Burford, Trial Judge.

George P. Uhl, for plaintiff in error.

Chas. E. Bush, for defendant in error.

IRWIN, J.:

¶1 The first assignment of error is:

"The court had no jurisdiction, because the affidavit for garnishment was void, in that it did not state that the amount claimed was over and above all off-sets."

¶2 Plaintiff in error insists that this is a mandatory and jurisdictional requirement, and cannot be cured by amendment. It is also urged that if the affidavit is amendable, it cannot be made by an attorney, but must be made by the party. We do not think the first position is tenable; we think a defective affidavit in attachment is subject to amendment the same as any other pleading in the case. In the case of Baker Wire Co. v. Kingman, et al. 24 P. 476, Judge Valentine, speaking for the Kansas supreme court holds that a defective affidavit in attachment is amendable, and cites as authority for this position, Burton v. Robinson, 5 Kan. 287; Ferguson v. Smith, 10 Kan. 396; Wells v. Danford 28 Kan. 487; Tracy v. Gunn, 29 Kan. 508; Bunn v. Pritchard, 6 Iowa 56. And our own supreme court in the case of Coyle Mercantile Co. v. Nix, Halsell & Co., 7 Okla. 267, 54 P. 469, puts an affidavit in attachment in the same condition as to amendments as any other process, proceeding or pleading; this court, through Judge Tarsney, says:

"Under our code any pleading process or proceeding, may, by leave of court, be amended, * * * under the provisions of the code an affidavit in attachment may be amended."

¶3 So it will be seen by the foregoing decisions that the action of the court in permitting the amendment was correct.

¶4 But the plaintiff in error insists that the affidavit could not be made by an attorney. And he cites in support of this the case of Barker v. Knickerbocker, 25 Kan. 201, where it was held that the attorney could not make the affidavit, and also the case of Aiken et al v. Franz, Kansas supreme court, reported in the 43 P. 306, where it was held that a pleading verified by an attorney, in the absence of the party should show that the attorney had some personal knowledge of the facts stated in said pleading. And it is this last clause in both these decisions which rob them of their force as authority in this case, because in this they differ from the affidavit in the case at bar. In the affidavit in the case at bar it is distinctly stated that the attorney makes the affidavit from personal knowledge, and thus it comes clearly within the provisions of section 114 of chapter 66 of the code, and makes it one of the cases where an attorney may make the affidavit to the pleading; and section 201 of the same chapter provides that the affidavit may be made by the plaintiff or some one for him.

¶5 The second assignment of error is:

"That the affidavit for publication is void, as not being in accordance with section 73, chapter 66 of the code, in this, that it states 'that defendants, after diligent search cannot be found in Payne county,' instead of stating, 'plaintiff, with due diligence, is unable to make service of summons upon the defendants', which latter is the exact language of the code."

¶6 The affidavit also states that the defendants were non-residents of the Territory, and absent therefrom. It is further objected that the affidavit does not state that the action is one mentioned in section 72 of the code. This affidavit was, by leave of court amended, and made by the amendments to conform to the requirements of the statute, (See record, page 14). But it is insisted by plaintiff in error that this was error, on the part of the court, that such an affidavit is not amendable. Now an examination of this affidavit will show that while it does not contain the exact, precise language of the statute, it does state the substantial requirements of the statute; that is, it states that suit has been begun, the names of the parties, the title of the court and the term, and it also states that the defendants are non-residents of the Territory and are absent therefrom, and by due and reasonable diligence cannot be found in Payne county, and this shows, inferentially, at least, that service cannot be had on either of them.

¶7 In the case of Raymond v. Nix et al., 5 Okla. 656, 49 P. 1110, this court says:

"An affidavit for publication which states defectively but inferentially the things required by the statute, is voidable but not void, and the defects may be cured by amendment. And when the defendant enters a general appearance in the cause, without first attacking the service by publication on the ground of a defect in the affidavit for publication, he waives such defect."

¶8 And in the case of Long et al. v. Fife, reported in 25 P. 594, the supreme court of Kansas say:

"Where an affidavit for publication, inferentially, but insufficiently, sets forth a material fact which ought to be expressly stated, the affidavit, if otherwise good, will be held to be merely voidable; and if the fact inferentially and insufficiently stated was in existence at

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