Spaulding v. Polley

• Decision Date: 09 May 1911
• Docket Number: Case Number: 816
• Citation: 115 P. 864,1911 OK 195,28 Okla. 764
• Parties: SPAULDING et al. v. POLLEY.
• Court: Oklahoma Supreme Court

1911 OK 195

115 P. 864

28 Okla. 764

SPAULDING et al. v. POLLEY.

Case Number: 816

Supreme Court of Oklahoma

Decided: May 9, 1911

Syllabus

¶0 1. PROCESS--Service by Publication--Sufficiency of Affidavit. Where it is stated in an affidavit to obtain service by publication that the defendants are non-residents and reside out of the territory of Oklahoma, and that plaintiff is unable with due diligence to make service of summons upon said defendants, though otherwise sufficient, it is defective on direct attack, in that it does not state that service cannot be had upon said defendants within the state. (Following Ballew v. Young et al., 24 Okla. 182, 103 P. 627.)

2. APPEAL AND ERROR--Time for Perfecting Appeal--Review of Action on Motions. A motion to quash the service by publication being overruled by the trial court, the defendant having appeared specially for the purpose of making such motion, and saving its exceptions to such action of the court, thereafter answered and the cause was tried and final judgment rendered. More than one year after the ruling on the motion to quash, but within a year from the time the motion for a new trial was overruled, the proceeding in error was commenced in this court. Held: That the action of the trial court in overruling the motion to quash was reviewable in such proceeding in error.

Error from District Court, Kingfisher County; A. H. Huston, Judge.

Action by Jay A. Polley against Mrs. F. E. Spaulding and D. H. Mills. Judgment for plaintiff and defendants bring error. Reversed and remanded.

Kane, J., dissents.

Warren K. Snyder (Harry White, on the brief), for plaintiffs in error.

W. W. Noffsinger and M. W. Hinch, for defendant in error.

WILLIAMS, J.

¶1 This action was to quiet title and remove cloud therefrom. The plaintiffs in error as defendants were brought in the court on service by publication. The affidavit therefor is made by one of the attorneys for said plaintiff, without setting forth therein the reason why it is not made by the party himself, or that the facts were within the personal knowledge of such attorney, or that such party was not a resident of or absent from the county. The affidavit recites:

"This is an action brought by the plaintiff to determine his right and interest in and to the following described real estate, to wit, * * * situated in Kingfisher county, Oklahoma, and to quiet title to same in this plaintiff aforesaid; that the defendants, * * * Mrs. F. E. Spaulding and D. H. Mills, are non-residents and reside out of the territory of Oklahoma and plaintiff is unable to with due diligence to make service of summons upon said plaintiffs."

¶2 It is insisted that the attorney for the plaintiff was unauthorized to make the affidavit for service by publication without bringing himself within the terms of section 5654 (sec. 3992, Stat. O. T. 1893), Comp. Laws of Oklahoma, 1909. But this section seems to refer only to pleadings filed under chapter 87 of the Compiled Laws of Oklahoma, 1909, and not to be a limitation upon section 5613 (sec. 3951, Stat. O. T. 1893), Comp. Laws of Oklahoma, 1909. Gillespie v. Thomas, 23 Kan. 138; Rowe v. Palmer, 29 Kan. 337; McBride v. Hariwell, 2, Kan. 410.

¶3 Is said affidavit defective in that it fails to state the facts showing due diligence, or is the recital that plaintiff is unable with due diligence to make service of summons upon said defendants sufficient? In Ballew v. Young et al., 24 Okla. 182, 103 P. 623, the affidavit recited that all of the defendants were nonresidents of the territory of Oklahoma, and service could not be had upon them, or either of them, within said territory, although due diligence had been made. The affidavit in question does not state that service cannot be had upon the defendants within the state. It may be that service could not be had upon said defendants within the county, although due diligence to that extent had been exercised. This is not a collateral but a direct attack upon this affidavit. In the Ballew case it was held:

"Where it is stated, in an affidavit to obtain service by publication, that a defendant is a nonresident of the state, and service cannot be had upon him within the state, and such affidavit is otherwise sufficient, it is not void or voidable because facts are not stated therein showing that plaintiff, by the use of due diligence, was unable to make service of summons upon the defendant."

¶4 The affidavit in this case does not come up to the rule laid down in Ballew v. Young et al., supra, or that in Washburn v. Buchanan, 52 Kan. 417, 34 P. 1049. On a motion to quash the service by publication, it being a direct attack, every intendment is to be resolved against the affiant. 32 Cvc. 474. The motion should have been sustained.

¶5 It is insisted that said defendants entered an appearance and waived said defect, but the record shows that the defendants appeared specially for the purpose of moving to quash the service by publication, and not until said motion was overruled and exceptions saved was any demurrer or answer filed. Chicago Building & Manufacturing Co. v. Pewthers, 10 Okla. 724, 63 P. 964; St. Louis & S. F. R. Co. v. Clark, 17 Okla. 562, 87 P. 430; Morris v. Graham, 51 F. 53; Harkness v. Hyde, 98 U.S. 476, 25 L. Ed. 237; Eddy v. Lafayette, 49 F. 807.

¶6 The question is raised as to whether this court may review the order of the trial court in overruling a motion to quash the service by publication, although more than one year had elapsed after the making of such ruling at the time of the commencement of the proceeding in error in this court. In Buxton v. Alton-Dawson Mercantile Co., 18 Okla. 287, 90 P. 19, it is said:

"Three assignments of error are argued in the brief, the first being that arising upon the motion to quash the summons, and, in answer to this proposition the defendant in error contends that the question cannot be reviewed by this court, for the reason that the appeal was not taken within a year from the time of the rendition of judgment by the court below upon the motion. The record shows that more than one year elapsed between the time that the court overruled the motion and the perfecting of the appeal in this court, although less

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