Manion v. Brady

Sherwin, C. J. The plaintiff herein was a resident of Minnesota, and owed the defendants herein, who were residents of Allamakee county, Iowa. The defendant Brady brought a suit in attachment against Manion, and had a levy made on land in Allamakee county, in which Manion owned an equity and to which he held title. Brady obtained a judgment, and the land was sold under execution to satisfy the same; the defendant Hart finally becoming the owner thereof under sheriff’s deed. The only notice of suit was by publication. The appellant contends that the statute authorizing such service was not strictly complied with, and because thereof the court was without jurisdiction to render the judgment under which his land was .sold. Two specific objections are made to the jurisdiction of the trial court in connection with the question of notice. The first is that no affidavit was filed that personal service could not be made on the defendant within this state; and the second, that proof of the publication of the notice was not made as required by the statute. Within the time required by law there was filed in the case a paper, which [308] remained of record, of which the following is an exact copy in both substance and form: I, "William S. Iiart, being first duly sworn on oath, say that I am the attorney for the.plaintiff in the above-entitled action; that the defendant is a nonresident of the state of Iowa, and service of the original notice in the said action cannot be made personally upon the defendant in the state of Iowa. [Signed] Wm. S. Hart. Subscribed and sworn to before me by the said William S. Hart this 31st day of July, 1901. -, Clerk Dist. Court. Plaintiff respectfully designates the New Albin Globe, a newspaper published in Allamakee county, Iowa, as the medium which he desires to have designated for the publication of the original notice in this action. [Signed] Wm. S. Hart, Attorney for Plaintiff. "Upon reading the foregoing affidavit, it is hereby ordered that publication be made in the paper above designated by plaintiff’s attorney. [Signed] J. C. Ludeking, Dep. Clerk Dist. Court. The appellant urges that this paper was not an affidavit, for the reason that it does not appear to have been sworn to, and that it amounted to no more than a declaration made in the form of a certificate. On the other hand, the appellees contend that the paper itself shows that it was sworn to, and further, was in fact .sworn to, and, having been duly filed, was in fact and in law the affidavit that the law requires, notwithstanding irregularity in the jurat. On the trial, it was shown that Mr. Hart did in fact swear to the body of the paper, and that the signature of the officer was placed below the direction for publication through inadvertence or mistake. 1. Jurisdiction : non-resident: service by publication. I. It.is settled, and in fact conceded, by the appellees that the statutes conferring jurisdiction to render a .judgment against a nonresident defendant on service of notice by publication only must be strictly and literally complied with, or the judgment and all subsequent proceedings based thereon are void, Schaller [309] & Son v. Marker, 136 Iowa, 575; Empire Real Estale & Mtg. Co. v. Beechley, 137 Iowa, 7. 2. Same : affidavit for publication of notice. It is also the rule that an affidavit that personal service cannot be made on the defendant within this state must be filed- ^0161 Publication of the notice. Carnes v. Mitchell, 82 Iowa, 601. Whether the paper under present consideration was an affidavit within the contemplation of the statute, or such an affidavit as it requires, is, at least, very doubtful, and we shall not determine the question in view of the fact that we are agreed that the affidavit of service was fatally defective, and hence conferred no jurisdiction on the trial court. II: The notice was published in a newspaper published in New Albin, Allamakee county, Iowa, called the New Albin Globe, and the following affidavit of such publication was made: I, H. J. Metcalf, publisher of the Globe, a weekly newspaper published in the city of New Albin, in said county and state, do solemnly swear that the advertisement (a copy of which is hereto annexed) was published in said paper 4 consecutive weeks, the first insertion being on the 7th day of August, A. D. 1901, and the last on the 28th day of August, A. D. 1901. M. J. Metcalf, Publisher. Subscribed and sworn to by. Geo. W. Metcalf, before me, a notary public of the state of Iowa, in and for Allamakee county, this 27th day of August, 1901. Witness my hand and notarial seal. [Signed] L. Ferris, Notary Public. [Seal.] 3. Commencement of ACTIONS : service by publication: proof of publication. This affidavit wholly failed to meet the requirements of the statute (Code, section 3535), which is as follows: “The publication must be of the original notice required for the commencement of actions, once each week for four consecutive weeks, before or after the filing of the petition, in some newspaper printed in the county where the petition is or will be filed, which paper shall be determined by the plaintiff or his attorney.” [310] In the first place, the affidavit on its face shows that it was not published once each week for four consecutive weeks. The first publication was made on the 7th day of August, and to comply with the statute it was necessary to publish it again on the 14th, 21st, and 28th of August, The' affidavit was made on the 27th day of August, at which time but three publications had been made, and the statement therein that the notice was published on the 28th day of August was manifestly false. Proof of publication of notice each week for four consecutive weeks in a newspaper printed in the county where the petition is or will be filed must be made by the publisher or his foreman and filed before default. Tunis v. Withrow, 10 Iowa, 307; Cooke v. Tollman, 40 Iowa, 133; Littlejohn v. Bulles, 136 Iowa, 151; Mortgage Co. v. Beechley, supra. The affidavit also purports to have been sworn to by Geo. W. Metcalf, who was not shown to be the foreman or the publisher, or in any way connected with the paper. The statute (Code, section 3536) says that the affidavit shall be made by the publisher or his foreman, and this affidavit itself shows that it was not made by the publisher, because it is stated therein that H. J. Metcalf was the publisher. The-record must show that the statutory requirements as to notice have been complied with, and parol testimony to show matters that should appear of record is inadmissible. Schaller & Son v. Marker, supra; Bradley v. Jamison, 46 Iowa, 68; Bardsley v. Hines, 33 Iowa, 159; Mortgage Co. v. Beechley, supra; Maynes v. Brockway, 55 Iowa, 460. The affidavit of publication is fatally defective in two or more respects, and, under the rule that the statute must be literally complied with to confer jurisdiction by publication of the notice, it is clear that the court had no jurisdiction to render the judgment in question. The appellee contends that the plaintiff is not the real party in interest, and hence cannot maintain this suit. No [311] such question was raised in the court below, and, of course, it cannot be considered here. 4. Execution sale : action to cancel : estoppel. Appellee also says that appellant is estopped from maintaining suit by his conduct after appellees had obtained their judgment and a sale had been made thereun¿er- Plaintiff did nothing more than to attempt a redemption, and it is not shown that the defendants herein were in any way prejudiced by his action. Appellees’ motion to strike appellant’s amendment to abstract is overruled. For the reason indicated, the judgment is Reversed.