Carey v. Reeves

[721] The opinion of the court was delivered by Valentine, J.: The only questions involved in this case are: First, has the district court jurisdiction to correct a mistake in a real-estate mortgage and to foreclose the mortgage in the same action, when the only service of summons is by publication? Second, is such a service of the summons sufficient when attacked collaterally and upon the facts of this particular case? The plaintiffs in this present action claim that the service of the summons in the aforesaid reformatory and foreclosure suit, which was by publication only, was not and is not sufficient, for the following reasons: First, that the affidavit upon which the publication service was made does not state or show that the defendant was at the time a non-resident of Kansas; and second, that it does not state or show anything with reference to the desired reformation of the mortgage. And they further claim that no jurisdiction of either the subject-matter of the action or of the defendant in the action, can be obtained in any case like the aforesaid reformatory and foreclosure action by any service by publication, for the reasons : First, that the mortgage in such a case, being defective with reference to the description of the land intended to be mortgaged, could not be foreclosed as to such land until the mortgage was reformed; and second, that such reformation of the mortgage can never be accomplished by any mere service by publication, for the reason that such reformation constitutes a separate cause of action from the desired foreclosure of the mortgage, and is a proceeding purely in personam, and not at all a proceeding in reni; and no proceeding in personam can ever be effectively instituted or maintained on any mere service by publication. All these questions are raised collaterally ; and are so raised by the present plaintiffs in this action brought by them to quiet their title to the land in controversy as against the title held by the present defendants under the said reformatory and foreclosure proceedings, and are not raised directly or in the original action in which the mortgage was reformed and foreclosed. [722] The statute governing the proceedings had in the reformatory and foreclosure action, including the service of the summons therein, was the code of civil procedure of 1859. (Comp. Laws of 1862, ch. 26, titles 4 and 5, and especially §§52, 78, 79. See also title 11, §385 of the same chapter.) This code provides for service of summons by publication in foreclosure actions, (§§ 52, 78, 79,) and also “in actions which relate to, or the subject of which is, real or personal property in this territory [state], where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the territory [state], or a foreign corporation,” (§§ 78, 79,) and provides for the filing of an affidavit as the foundation of such service, in the following words, to wit: “Sec. 79. Before service can be made by publication, an affidavit must be filed that service of a summons cannot be made within this territory on the defendant or defendants, to be served by publication, and 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.” It seems to be admitted that everything in the said reformatory and foreclosure action was sufficient in every respect, excepting the affidavit for publication service; and it is claimed that such affidavit is defective for the reasons and in the respects above mentioned. We shall now proceed to consider the questions raised by the plaintiffs in the present action. Does the affidavit for publication show that the defendant in that action was a non-resident of Kansas at the time when such affidavit was filed? The affidavit states, “that the said defendant has removed from the said county of Shawnee, and now resides in that region of country known as Pike’s Peak, and that service of summons cannot be made on said defendant within this territory.” When this affidavit was filed is not shown. It is alleged that action was commenced on January 17,1861, and the affidavit shows that the petition was [723] filed “on the —=— day of January, 1861.” But there is nothing to show when the affidavit was in fact filed. If it was filed prior to January 29, 1861, the region of country known as Pike’s Peak, or a portion thereof, was in Kansas; but if the affidavit was filed after January 29,1861, then such region was not in Kansas, and no part thereof was in Kansas. And it devolves upon the plaintiffs to show clearly and affirmatively when this affidavit was filed; or, in other words, to show clearly and affirmatively that the facts were such that the district court could not have had jurisdiction to render the judgr ment which it did render in the reformatory and foreclosure action. As the district courts of this state are courts of general and superior jurisdiction, it will be presumed, in the absence of any showing to the contrary, that they possessed all the jurisdiction that was necessary for them- to possess in order to render the judgment or order, which it is shown they in fact did render. All presumptions are in favor of the jurisdiction of the court. In this case, if it were necessary to presume that the affidavit was filed at a time when no part of the region of country known as Pike’s Peak was in Kansas, it will be so presumed. But does not the affidavit itself show that such was the fact, or at least that the defendant did. not reside in any region of country included in the boundaries of Kansas, but resided outside of the territory of Kansas? If his residence was in Kansas, he could have been served with a summons in Kansas by leaving a duly-certified copy thereof at his usual place of residence. (Civil Code of 1859, §§66, 70.) But the affidavit shows that a summons could not have been served on the defendant within the territory of Kansas. We suppose that when the plaintiffs in this action say that the foreclosure action was commenced on January 17, 1861, they mean that the petition was filed on that day. But when the affidavit was filed, or when the service-was made, is not shown; nor is it shown when the judgment was rendered. It may have been in 1861, or in 1862, or in .some subsequent year. We cannot say that the court below erred in deciding against the pláintiffs in this particular. [724] Does the affidavit state or show anything with reference to the reformation of the mortgage? The object of the suit was not the mere reformation of the mortgage. The main object of the suit was to foreclose the mortgage and to sell the mortgaged property; and the reformation of the mortgage was a mere incident to the foreclosure thereof. And the affidavit was undoubtedly sufficient for the foreclosure. In this state a person has a right to obtain service by publication in any action to foreclose a mortgage. (Civil Code of 1859, §§ 52, 78, 79.) And he also has a right to obtain such a service in any action which relates to real estate, or in any action of which real estate is the subject. (Civil Code of 1859, §§ 78, 79.) And the reformation of a real-estate mortgage by correcting the description of the real estate intended to be mortgaged, as well as the foreclosure of the mortgage, is certainly an action relating to real estate, if such a reformation under such circumstances can be considered as an action at all. In this case, we think that the reformation of the mortgage was not an action at all, but was a mere incident to the main action for foreclosure. It was a mere step in the foreclosure of the mortgage, and the publication notice and the petition in the foreclosure action undoubtedly informed the defendant in that action as to just what was desired. An affidavit for publication service is not intended in any case as a notice to the defendant. It is the notice itself as published in the newspaper that is intended to give notice to the defendant, and no complaint is made in this action as to the notice that was given in that action. "We think the affidavit was sufficient with respect to both the foreclosure of the mortgage and the reformation thereof. It showed that the action was for the foreclosure of a mortgage and the sale of the mortgaged property, and that the entire action related to certain real property situated in Shawnee county, Kansas. And now as it is attacked only in a collateral proceeding, we hold it to be sufficient. The order and judgment of the court below will be affirmed. All the Justices concurring.