Washburn v. Buchanan

• Decision Date: 01 July 1893
• Citation: 52 Kan. 417,34 P. 1049
• Parties: GEORGE W. WASHBURN v. CHARLES H. BUCHANAN et al
• Court: Kansas Supreme Court

34 P. 1049

52 Kan. 417

GEORGE W. WASHBURN v. CHARLES H. BUCHANAN et al

Supreme Court of Kansas

July 1, 1893

Error from Butler District Court.

THE opinion states the case.

Judgment affirmed.

Hamilton & Leydig, for plaintiff in error.

S. E Black, and Redden & Schumacher, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

It is contended that the affidavit for publication in this case and the service based thereon, is voidable, and that, as it was properly challenged by motion, the trial court should have set the service aside. There is but one question for consideration: Was the affidavit for publication sufficient to authorize the trial court to render the judgment of foreclosure? Section 73 of the code of 1868 was the law of this state providing for an affidavit for publication until chapter 107 of the Laws of 1889 took effect. It reads:

"SEC. 73. Before service can be made by publication, an affidavit must be filed that service of a summons cannot be made within this state on the defendant or defendants to be served by publication, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication."

On the 15th day of March, 1889, a new law went into effect concerning affidavits for publication. This statute of 1889 is as follows:

"SEC. 73. Before service can be made by publication, an affidavit must be filed stating that the plaintiff, with due diligence, is unable to make service of the summons upon the defendant or defendants to be served by publication, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication." (Laws of 1889, ch. 107, § 2; Civil Code, § 73.)

If the defendants were nonresidents of the state, and if service could not be made upon them within the state, it could not be made within the state by due diligence, or any other diligence. In the affidavit, the affiant stated positively "that the defendants were nonresidents of this state and service could not be had upon them within the state." If service could have been made by due diligence, then the affiant to the affidavit could not have said "that service could not be made within the state." The affidavit was sufficient under Laws of 1889, chapter 107, § 2. (Civil Code, § 73...