Sharp v. McColm
| Citation | 79 Kan. 772,101 P. 659 |
| Decision Date | 10 April 1909 |
| Docket Number | 15,902 |
| Parties | BENJAMIN H. SHARP v. GEORGE E. MCCOLM et al |
| Court | United States State Supreme Court of Kansas |
Decided January, 1909.
Error from Ford district court; GORDON L. FINLEY, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
1. PETITION -- Foreclosure of a Mortgage -- Description of the Land. A copy of the mortgage involved, attached to and made a part of the petition in a foreclosure suit controls all general recitals of the petition at variance with the copy; and if the land affected be misdescribed in the body of the petition a correct description in the copy will govern.
2. JURISDICTION--Affidavit for Publication Service--Description of Land. An affidavit for service by publication in a foreclosure suit which discloses that the action is one to foreclose a real-estate mortgage, and to sell land to satisfy the lien of such mortgage, establishes a basis for publication sufficient against collateral attack without describing the land; and if the disclosure referred to be made a misdescription of the land may be ignored.
3. JURISDICTION--Notice by Publication--Description of Land. A notice by publication in a foreclosure suit which is otherwise sufficient will confer jurisdiction if the general nature of the judgment to be rendered be stated. It is not essential to jurisdiction that all the details of the judgment be stated with precision and certainty. The real estate involved need not be described at all; and if the notice show that judgment will be rendered for the foreclosure of a real-estate mortgage, and for the sale of real estate to satisfy the lien of such mortgage, a misdescription of the section subdivisions of the land affected will not defeat jurisdiction.
4. JUDGMENTS--Interpretation--Pleading--Evidence. A judgment which is open to two interpretations should be given that meaning which will make it correct, proper and valid, rather than the one which will make it incorrect, improper or invalid, and the pleadings upon which it is founded may be examined to ascertain its true intent.
5. JUDGMENTS--Default--Foreclosure--Description of Land. A default judgment in a foreclosure suit which refers to the land described in the petition, but which misdescribes such land, will be construed to embrace the land correctly described in the petition.
Wheeler & Switzer, for plaintiff in error.
Thomas A. Scates, and Albert Watkins, for defendants in error.
OPINION
The question for decision is whether the proceedings upon which a sheriff's deed is based are void, and therefore open to collateral attack. The proceedings in question were brought in the district court of Ford county for the foreclosure of a mortgage given by Newton D. Wall and Jemima Wall to the Howard State Bank, of Howard, Kan., for $ 700, dated August 1, 1889, acknowledged August 17, 1889, and covering the east half of the northwest quarter and the east half of the southwest quarter of section nineteen, in township twenty-one south, of range twenty-three west of the sixth principal meridian, in Ford county, Kansas. The allegations respecting the mortgage in the body of the petition properly identified it in all respects except that the quarter-sections were stated to be the northeast and southeast instead of the northwest and southwest. A copy of the mortgage, containing a true description, was attached to the petition as an exhibit, and by proper allegations was made a part of the petition itself.
Service was made by publication. The affidavit for service by publication reads thus:
"That said action is one of those mentioned in section 46 of the code of civil procedure of the state of Kansas, and is brought for the foreclosure of a real-estate mortgage, and for the sale thereunder of the following real estate, situate in said Ford county, Kansas, to wit:"
Then follows the erroneous description given in the body of the petition. In other respects the affidavit was in due form.
The material portions of the publication notice read as follow:
The defendants made default. The judgment recites that the cause came on for trial on the pleadings, finds that the allegations of the plaintiff's petition are true, finds that the plaintiff has a first lien on the lands and tenements described in the petition, and proceeds as follows:
"If defendants fail for six months from this date to pay to plaintiff the sum found due him as aforesaid, with the interest thereon, and costs of this action, an order issue to the sheriff of this county commanding him to advertise and sell, without appraisement, in the manner provided by law, the lands and tenements mentioned in plaintiff's petition, and described as follows, to wit:"
Then follows the misdescription appearing in the petition. The order of sale, notice of sale, sheriff's return, decree of confirmation, and sheriff's deed, all describe the land correctly. Did any of the misdescriptions noted render the sheriff's deed a nullity?
It is undisputed law that the copy of the mortgage attached to and made a part of the petition controlled all general recitals of the petition at variance with the copy, and the land described in the petition was that described in the copy.
An affidavit for service by publication is not designed to convey any information to the defendant to be served. ( Gillespie v. Thomas, 23 Kan. 138.) Its purpose is to bring upon the record the statutory foundation for the publication of a notice. It does this whenever it presents a case within the provisions of section 72 of the civil code. By a reference in this section to section 46 actions for the sale of real estate under mortgage liens are included among those in which service may be made by publication. When the affidavit in question disclosed that the action was one to foreclose a real-estate mortgage, and to sell land under such mortgage, a sufficient basis for publication was established. A specific description of the land affected was not indispensable, and the misdescription may be rejected as surplusage. But if the misdescription be regarded the necessary jurisdictional facts still appear. It has been said that an affidavit for service by publication should show the location of the land in order to withstand a direct attack ( Railway Co. v. Stone, 60 Kan. 57, 55 P. 346), but a statement of jurisdictional facts in the form of a mere conclusion, as that the action is one brought for the sale of real estate under a mortgage, is sufficient when questioned collaterally.
The statute relating to service by publication (Civ. Code, § 74) provides that the published notice shall state the nature of the judgment which will be rendered if the party so served do not answer. The nature of a judgment may be briefly stated in a few general terms, or the statement may be elaborated to cover every detail with the utmost certainty, including the description of real estate to be affected. Therefore the validity of the notice involved depends upon an interpretation, first, of the statute, and then of the notice itself.
Certain rules are well established. Notice is all that is required to confer jurisdiction. To obtain complete and definite information the party served must follow up the suggestions...
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