Little v. Chambers

Dillon, Ch. J. We have carefully examined every case decided by this court respecting service by publication, under section 1826 of the Code of 1851, and under the act of 1857 (Laws of 1857, ch. 240, p. 400), from Broghill v. Lash (3 G. Greene, 357), to Abell v. Cross (17 Iowa, 171). When the facts of the several cases are particularly regarded, these cases do not go so far as to hold that the decree obtained by Kellogg, and particularly referred to in the statement, is absolutely void on its face for want of jurisdiction in the court. It is admitted that compliance with section 1826 of the Codeis held necessary to confer jurisdiction, and that this compliance must appear [526] of record. This is so well understood to be the settled construction of the statute, that it is not necessary to cite the cases upon the subject. In the case before us, every step which the law required was taken. The case was one in which, under chapter 240 of the Laws of 1857, a publication was authorized. An affidavit was made that defendant could not be found within the State; that his name and residence were unknown, and could not, with reasonable diligence, be ascertained. This was satisfactory to the judge, and he ordered the publication. Publication was made as ordered, and duly proved by the affidavit of the* proprietor of the paper. Before the decree was taken, both the plaintiff and his attorneys filed separate affidavits that they didn’t know the name or residence of the owner of the land, and had not, by reasonable diligence, been able to ascertain the same. These were placed of record, and the District Court, in its decree, refers to these affidavits, and recites that it is satisfied with the facts therein stated as to the name and residence of the owner being unknown. It is true that, strictly, the affidavit for the publication and the affidavits under section 1826 should state the facts, showing what diligence had been used to ascertain the name and place of residence of the owner of the land. But when every step has been taken, and when the court was satisfied therewith and rendered a decree, does the failure to state in the affidavit the facts showing diligence — although it is stated that diligence was used — have the effect wholly to deprive the court of jurisdiction, and to render its decree void on its face ? No case heretofore decided has gone so far as to so hold. This is not a case where no affidavits or proof, as required by section 1826, are on file or of record, and where there is no recital of a compliance with that section. [527] But tbis is a case where every step and every affidavit required by the statute was taken or made, where the court so, found and rendered its decree, which remains in full force; and it is also a case where it is sought, in a collateral action, and not by direct attack, as in McGahen v. Carr (6 Iowa, 331), or by appeal, as in many other cases reported from this court, to have the decree held to be absolutely void on its face, because the affidavits failed to state the facts showing diligence. This would be good ground for reversal on appeal; and, perhaps, under McGahen v. Carr, if due diligence was not in fact used, there might be some remedy for the owner, but it is not sufficient to render the whole proceeding void for want of jurisdiction in the court. In this particular case, indulging a natural preference for the regular title as against a tax title, it might be very agreeable to .thus hold. But such strictness, as applied to service by publication, would have the effect to unsettle and disturb many decrees and sales in the ordinary course of judicial proceedings, and would strike down, besides tax titles, many others that have been fairly acquired and long acquiesced in. This case is distinguishable from Abell v. Cross (17 Iowa, 171), in these pai’ticulars: there the order f<?r publication was made by the clerk without authority, while here it was made by the proper officer; in that case thei’e were no affidavits or proof on file showing compliance with section 1826, nor any recital in the record that diligence was used; in this case the affidavits sand proof are on file and recited in the decree, and the affidavits on file and the recitals in the decree based thereon prima facie, show that the court had jurisdiction; and we unite in the opinion that, in such a case, the mere failure of the affi; davits to state what diligence was used does not make the decree wholly void on its face when collaterally assailed. The judgment of the General Term is Affirmed.