Romig v. Gillett

• Decision Date: 30 June 1900
• Citation: 1900 OK 80,10 Okla. 186,62 P. 805
• Court: Oklahoma Supreme Court
• Parties: JOHN ROMIG AND DANIEL W. HARDING v. MYRTLE GILLETT.

1900 OK 80

62 P. 805

10 Okla. 186

JOHN ROMIG AND DANIEL W. HARDING v. MYRTLE GILLETT.

Supreme Court of Oklahoma

Decided: June 30, 1900

Error from the District Court of Garfield County; before Jno. L. McAtee, District Judge.

Syllabus

¶0 1. SERVICE BY PUBLICATION. Where a party seeks to bring a defendant into court upon service by publication under the code, he must strictly comply with the requirements of the statute, and unless this be done the judgment will be void for want of jurisdiction of the person of the defendant.

2. AFFIDAVIT OF NON-RESIDENCE. An affidavit made by the plaintiff's attorney upon information and belief merely, stating that the defendants are non-residents of the Territory, and that service or summons cannot be had upon them within said Territory, is wholly insufficient to authorize an order for publication of the summons, and the publication founded upon such an affidavit is absolutely void, and every subsequent proceeding in the case based upon such service, including the judgment, the order of sale, the confirmation of the sale, and the sheriff's deed, are necessarily void for want of jurisdiction.

D. D. Temple, L. N. Houston, and Buckner & Son, for plaintiffs in error.

George P. Rush, for defendant in error.

STATEMENT OF THE CASE.

It appears from the record and the briefs of counsel, that on the second day of February, 1895, Don A. Gillett made, executed and delivered to John Romig his promissory note for $ 700.00, payable two years after date, bearing interest at the rate of twelve per cent per annum, payable semi-annually in advance. This note was secured by a real estate mortgage executed by the said Don A. Gillett upon the east half of the northeast quarter of section eighteen, township twenty-two, range six west of the Indian Meridian. It further appears that on the sixth day of February, 1895, Don A. Gillett executed a deed to one Myrtle Gillett for said land, subject to the above described mortgage. It further appears from the record that on the 11th day of March, 1896, John Romig brought an action in the district court of Garfield county against Don A. Gillett and Myrtle Gillett to recover judgment against the said Don A. Gillett for $ 749.00, with interest and attorneys fees, and to foreclose said mortgage. The petition contained the following averment: "Plaintiff further states that said defendant Myrtle Gillett has or claims to have some interest or lien upon said premises, or part thereof, and if any she may have, it is junior, inferior and subject to plaintiff's mortgage deed."

On June 2, 1896, John Romig filed in the district court his affidavit for summons by publication, which affidavit is as follows:

"AFFIDAVIT FOR PUBLICATION.

"Territory of Oklahoma, Garfield County--ss: In the District Court in the County and Territory Aforesaid.

"John Romig, Plaintiff, v. Don A. Gillett and Myrtle Gillett, Defendants. Affidavit.

"D. D. Temple being duly sworn according to law, says that he is the attorney for the above named plaintiff, and that on the day of March, 1896, said plaintiff filed in the district court aforesaid a petition against said defendants, showing that said defendant Don A. Gillett heretofore executed and delivered to said plaintiff, John Romig, a certain mortgage deed, conveying the following described real estate, to-wit, the east half of the northeast quarter of section eighteen, township twenty-two, range six west of the Indian Meridian, lying and situated in the county of Garfield and Territory of Oklahoma, to secure the payment of a certain sum of money mentioned in said mortgage and in said petition. That the conditions of said mortgage had been broken, and said mortgage had become absolute. That said plaintiff is the legal owner and holder of said indebtedness and said mortgage. That said defendants claim a lien upon or right, title, estate, interest, or equity of redemption, in or to said premises or some part thereof subject and inferior to the right of said plaintiff and praying judgment for the amount due said plaintiff on the said indebtedness for the foreclosure of said mortgage. That the lien, claim, interest, estate, and equity of redemption of said defendants in and to said premises, if any they may have, be determined and settled, and that said plaintiff be adjudged to have the first lien and claim upon said premises.

"That said premises be ordered sold according to law, and the proceeds applied to the payment of said indebtedness due said plaintiff, and that said defendants be forever barred and foreclosed of and from all right, title, estate, interest, property and equity of redemption in or to said premises or any part thereof.

"The affiant further says that the said action is brought for the sale of the real estate under the aforesaid mortgage.

"Affiant further says that he is unable and that the plaintiff is unable by using due diligence, to obtain service of summons on the said defendants within the Territory of Oklahoma.

"Affiant further states that on the day of March 1896, he caused a summons to be issued in said cause for said defendants, directed to the sheriff of Garfield county, Oklahoma Territory. Sheriff made return, 'Defts. not found in my county.'

"Affiant further states upon information and belief that the said defts., Don A. Gillett and Myrtle Gillett are non-residents of the Territory of Oklahoma, and that service of summons cannot be made on the said defts., Don A. Gillett and Myrtle Gillett within the said Territory of Oklahoma, and that said pltff. wishes to obtain service upon said defts. by publication, and further affiant saith not.

D. D. TEMPLE,

"Subscribed and sworn to in my presence before me this 2nd day of June, 1896. J. C. MCCLELLAND, Clerk.

"SEAL.

"By W. B. JOHNSTON, Deputy."

On the 18th of December, 1896, judgment was rendred; that on February 20, 1897, said sale was by the mortgage was foreclosed, and the sale of the land ordered; that on February 20, 1897, said sale was by the court confirmed, and an order made requiring the sheriff to execute a deed to the purchaser, and in obedience to such order on March 9, 1897, the sheriff executed a deed to the plaintiff in error, John Romig, for said premises. It appears that thereafter on the 9th of March, 1897, John Roming, for a valuable consideration, sold said premises to the plaintiff in error, Daniel W. Harding. That on September 17, 1898, Myrtle Gillett, the defendant in error, filed her motion to vacate and set aside the judgment upon the following grounds: (1) That the court had no jurisdiction of the defendant Myrtle Gillett. (2) Because said court had no jurisdiction to render said judgment. (3) That the defendant was at all times during the pendency of said action a resident of the Territory of Oklahoma, and that no summons was ever served upon her. (4) That the service of publication was void.

In support of this motion to vacate the judgment, the following affidavit was filed by the defendant in error, Myrtle Gillett (omitting caption and jurat):

"Comes now the defendant Myrtle Gillett and being sworn says, that on the 11th day of March, 1896, and for a long time prior thereto she was, ever since has been, and now is a resident of the county of Kingfisher and Territory of Oklahoma, and resided upon the real estate in said county described as follows, to-wit: S. W. 1/4, sec. 13, twp. 19, range 7, joining Hennessy, O. T.

"That from said 11th

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