Whitney v. Masemore
| Decision Date | 06 April 1907 |
| Docket Number | 14,970 |
| Citation | 89 P. 914,75 Kan. 522 |
| Parties | FLORENCE D. WHITNEY v. FRANK N. MASEMORE |
| Court | Kansas Supreme Court |
Decided January, 1907.
Error from Hamilton district court; WILLIAM EASTON HUTCHISON judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
JURISDICTION--Service by Publication. In a suit to quiet title to real estate, where the only attempt to obtain jurisdiction of Florence D. Whitney, an unmarried woman, one of the defendants, was by publication, in which she was referred to as " Whitney, and Whitney, his wife, whose first names are unknown," without any other description or identification, and where there was no appearance or waiver of the issuance and service of summons, the court did not acquire jurisdiction of her, and a judgment against her upon such notice is void.
Whitcomb & Hamilton, and R. S. Cone, for plaintiff in error.
George J. Downer, for defendant in error.
Frank N. Masemore commenced this suit to quiet his title to certain lands. There were several defendants. Among others named were " Whitney, and Whitney, her husband." The allegations in the petition referred to these parties as " Whitney, and Whitney, her husband," whose real names the plaintiff was unable to ascertain. An attempt was made to get service of summons by publication. In the affidavit therefor they were described as " Whitney, and Whitney, his wife, whose first names are unknown." In the notice of publication they were referred to as " Whitney, and Whitney, his wife, whose first names are unknown." After this notice had been published the plaintiff, without notice, amended his petition, both in the title and body, by inserting the name "Florence I." before the name "Whitney" that referred to the wife.
Thereafter, and on June 3, 1902, judgment was rendered against Florence "I." Whitney and others, by which it was adjudged that the plaintiff's title to the real estate was valid and perfect, and that the defendants had no estate or interest therein. On January 26, 1906, Florence D. Whitney filed a motion to set aside the judgment rendered against her on June 3, 1902, as to one of the quarter-sections of the land described in the petition, claiming that the record showed that no service of summons was ever made personally or by publication upon her, that she had made no appearance in the suit, and that she had had no notice or knowledge of the same until long after the rendition of the judgment. This motion was supported by her affidavit, in which she stated that she was and had been for more than five years last past an unmarried woman; that she claimed an interest in the quarter-section of land therein described, being one of the quarters described in plaintiff's petition; and that she had no knowledge or notice of such action or the pendency thereof or the rendition of the judgment until long after the same was entered. It was admitted by the plaintiff that the statements contained in Florence D. Whitney's affidavit were true. Upon a hearing the motion was denied. The only question for our consideration is whether a judgment rendered against Florence D. Whitney on such a service is void.
The provision of our statute with reference to service of summons by publication provides that the notice published shall contain "the names of the parties." (Gen. Stat. 1901, § 4508.) If the Christian names of the defendants are unknown to the plaintiff he ought to give such description or identification of them in the notice that the defendants and persons acquainted with them would by reading the notice know who were being sued. The notice "must be given with sufficient accuracy clearly to indicate their identity."
The notice given by the plaintiff in this case did not identify Florence D. Whitney. There were no statements or intimations that would indicate to her or any other person who read the notice that she was intended as one of the defendants. Indeed, she might very reasonably have concluded from reading the notice that she was not the Whitney for whom the notice was intended. All effort made to identify her was misleading. The description was " Whitney, and Whitney,...
To continue reading
Request your trial
-
State v. Dunn
......S. Reppy with J. I. Rippey, or of J. L. Cecil with J. S. Cecil, they could not. be regarded as the same persons. See, also, Whitney v. Masemore, 75 Kan. 522, 89 P. 914. In Ferguson v. Smith, 10 Kan. 396, the plaintiff sued as A. M. Ferguson, and defendants were sued as Frank ......
-
Webster v. Heginbotham
...... communicated to him than if the publication had been by his. real name by which he was not commonly known. Whitney v. Masemore, 75 Kan. 522, 89 P. 914, 11 L.R.A.(N.S.) 676, 121. Am.St.Rep. 442. Therefore, so far as service by publication. is concerned, as ......
-
King v. Wilson
...could be misled as to the party for whom the notice was intended. (Doyle v. Hays, 80 Kan. 209, 102 P. 496.) (See, also, Whitney v. Masemore, 75 Kan. 522, 89 P. 914; Sharp v. McColm, 79 Kan. 772, 101 P. 659; v. Chessman, 49 Minn. 140, 51 N.W. 666; Schee v. LaGrange, 78 Iowa 101, 42 N.W. 616;......
-
High v. Southwestern Ins. Co.
...section applies only where personal service has been made upon the defendant, even though his true name is not known. Whitney v. Masemore, 75 Kan. 522, 89 P. 914 (1907). Likewise, the Oklahoma clearly states that even though the defendant's true name is unknown the summons must be personall......