Bixby v. Bailey

The opinion of the court was delivered by Brewer, J.: 1. General findings. 2. Proof of judgment. Secondary evidence. Bixby brought his action of ejectment against Bailey to recover the possession of a quarter-section of land. Bailey in his answer claimed title by sheriff’s deed, of record more than five years, by tax-deed, by decree of foreclosure, and sale thereunder, and by estoppel. On the trial a general finding was made in his favor upon all these defenses, except the tax-deed. Such a finding is of ■course equivalent to a finding of every fact necessary for these .several defenses. The question for our determination is, as to the sufficiency of the testimony to establish these various defenses, or at least some one of them. And first.let us examine .the title acquired by the decree of foreclosure, and sale thereunder. Service was made in the foreclosure suit by publication; and objection is made to the sufficiency of this service. That which is claimed to be lacking is the affidavit for publication, and the proof of publication. It appears that all the papers in this case were destroyed by fire some years since. Of course, the parties were then remitted to secondary evidence. Turning to the final r ecord we find the petition, the notice of publication, and the [365] judgment. No affidavit for publication is copied, but there appear just before the notice these words: “And on the necessary affidavit being filed, the following notice was published, to-wit.” No proof of publication is copied into the record; but between the notice and the judgment is entered this recital: “Proof of publication was duly sworn to by the publisher of the Doniphan Cownty Patriot.” If we look to the appearance-docket we find these entries:— “To filing affidavit for publication, and entry, .15; To taking affidavit for publication, and entry, .35; To taking affidavit Patriot, (Printer’s fee $12.00,) .35; To taking affidavit, .15.” Albert Perry testified that he was the attorney of the plaintiff in the foreclosure suit; that he drew up the affidavit for publication; that it was sworn to by the plaintiff; that the affidavit stated non-residence as the ground for publication, and that the action was to foreclose mortgage; and that he had no recollection of ever drawing a defective affidavit. He also testified that he drew up the notice of publication; that it was published in the Doniphcun Cownty Patriot; ihat the then publisher, E. H. Grant, did not now live in the State; that he had looked for a copy of the paper containing the notice, but had been unable to find one; that he did not recollect what day of the week the paper was published, or the day- of week or month the affidavit was filed, or time of the first or last insertion of the notice in the newspaper, or the number of insertions. The appearance-docket shows that the affidavit for publication was filed on the 8th of January, the day of filing the petition, and sixty-three days before the time for answer fixed in the notice. In this it contradicts the witness Perry, who thinks the-affidavit was not filed until two or three days after the petition. There is also a recital in the judgment that the defendant had been duly served by publication in the Doniphan Cownty Patriot. We think this testimony sufficient to sustain a finding of the regularity of the proceedings in the foreclosure suit. The district court is one of superior and general jurisdiction, and as such, at least when acting according to the course of the common law, is [366] presumed to act by right, and not by wrong. The whole record, is presented, and not a fragment merely, as in the case of Hargis v. Morse, 7 Kas., 415. From that record it appears that every step was taken that the law requires to confer jurisdiction. True, by an accidental burning the files and papers in the case are destroyed. But the rights created by those proceedings are not lost by that destruction. True also, that two papers which should have been copied in the final record, were not; but this failure of the clerk will not avoid the proceedings. That such papers existed, is shown by the final record, the appearance-docket, and parol testimony. That the affidavit for publication disclosed one of the statutory grounds for such constructive service, to-wit, non-residence of the defendant, and that it was made by the plaintiff in the action, are shown by the parol testimony. That publication was made, and proof of it filed, is likewise shown. True, the parol testimony fails to show affirmatively that the affidavit for publication alleged that service of a summons could not be made in this state upon the defendant, that the notice of publication was first inserted sixty-two days before the answer-day, or that it was inserted in six successive issues of the paper, or that the proof of publication was full and complete. But on the other hand, there is nothing in the testimony to raise a suspicion that anything was lacking in these respects. Surely, under these circumstances the presumption which exists in favor of the regularity of the proceedings of superior courts of general jurisdiction ought to be sufficient to sustain this decree. Indeed, it would be questionable whether in face of such testimony, the proceedings of a court of inferior and limited jurisdiction could be declared void. 3. Service; proof of non-residence. The next objection presented is this: Even though the proceedings of the court in the foreclosure suit were regular on their face, the plaintiff claims that he could ' x show and did show by parol testimony that the defendant in that suit was at the time a resident of this state, and therefore could not be brought into court by publication. [367] Jurisdiction implies jurisdiction of the person as well as of the subject-matter. Jurisdiction of the person is acquired by appearance or service. There was no appearance. Service is made by summons, upon a resident; by publication, upon a non-resident, or one concealed, and beyond the reach of summons. Service in this case was by publication, but the defendant was a resident, and not concealed; therefore the pxxblication was inoperative to bring the defendant into court, and the decree void for want of jurisdiction of the person. There is much dispute, and gi’eat conflict of authority, as to how far the adjudication of a court of superior and general juiusdiction as to the matter of service concludes the parties. We think it unnecessary in this caseto enter into a discussion of that question, or an examination of those authorities. The curious will find the matter fully presented in 1 Smith’s Leading Cases, 816; Halm v. Kelly, 34 Cal., 391; Coit v. Haven, 30 Conn., 190; Freeman on Judgments. For, conceding for the purposes of this case that inquiry may be made beyond the record, and against the adjudication of the court, into the sufficiency of the service, still we think there is not enough to justify us in setting aside the finding of the court below. There was some testimony on both sides, enough to sustain a finding against the plaintiff. The adjudication that service was duly made is prima faeie evidence. That, the strongest opponents of its conclusions will admit. The affidavit of the plaintiff in the foreclosure suit of non-residence is also entitled to some weight. The only parol testimony tending to show residence is that of the plaintiff in this (who was the defendant in that) action. From that it appears that he was a single man, and for two or three years, including the time of the pendency of the foreclosure suit, absent from the state. It does not appear that he had any fixed home, or place of residence. He was for about a year enlisted and serving in the Missoixri State Militia. After that service expired, he enlisted in the 14th Kansas Volunteers, and served with it a couple of years or so. While away in the Missouri militia his trunk was at a hotel in White Cloud; [368] and while with the Kansas regiment his trunk was somewhere in White Cloud. He says he intended all the while to return to Kansas on the expiration of his service. He returns to White Cloud, and remains there for about six years before commencing proceedings to recover this land. During all this time he paid no taxes on, or attention to it. Two conveyances had been made since the sheriff’s deed, and valuable and lasting improvements placed upon the premises. Two •witnesses, Dana Fox arid Albert Perry, testify that Bixby was away during those years, and that they were informed he was a non-resident, and one of them knew of his 'being in St. Joseph, Missouri, and serving in the Missouri State Militia. Upon this testimony we are unwilling to disturb a finding that Bixby had so far lost his residence here that proceedings against him by publication were proper, and an adjudication of a competent court upon such service conclusive. 4. Right of redemption. Again, it is insisted that under the law in force at the time of the decree and sale the debtor had two years to redeem, and therefore the sheriff’s deed was void. The n0£e an(j mor£gage were executed before the redemption-law, and therefore unaffected by its provisions. Bronson v. Kinzie, 1 How., 311. We think no defect is pointed out in the sheriff’s deed which can be taken advantage of in this collateral manner. Paine v. Spratley, 5 Kas., 525. As the decision of these questions disposes of the case it is unnecessary to inquire into the sufficiency of the other defenses. The judgment of the district court is affirmed. All the Justices concurring.