Jones ex rel. Nellis v. Warnick

Opinion by Simpson, C.: This case was tried in the district court of Shawnee county on an agreed statement of facts, which shows that the real estate in controversy, situate in Shawnee county, was owned by one Helen M. Jones. She died intestate April 5,1875, leaving as her sole heirs her husband, Thomas W. Jones, and two children, Helen M. Jones and Susan I). Jones, who were, at the commencement of this action, minors. She owned also land in Osage county. Affidavit for attachment was duly filed in the district court of Osage county, on the 16 th day of July, 1878, in an action brought by F. E. Denman, administrator of the estate of H. [69] B. Denman, deceased, against the said Thomas W. Jones and the said minor heirs of Helen M. Jones, on a note executed by said Thomas W. Jones and Helen M. Jones, during the lifetime of said Helen. The affidavit for attachment is as follows: “State op Kansas, Osage County. “ E. H. Denman, being first sworn in due form of law, on his oath says that he is the plaintiff above named, and is the duly qualified and acting administrator of the estate of H. B. Denman, deceased; that on the 11th day of July, 1873, the defendant, Thomas W. Jones, and his wife, Helen M. Jones (since deceased), executed their note to H. B. Denman (since deceased) for $500, with interest thereon, payable annually, at 12 per cent, per annum, and also for attorney’s fee if suit be instituted on said note; that Helen M. Jones since that time died, leaving the defendants surviving her as her heirs at law; that she died seized in fee of certain lands in the state of Kansas; that there has been no administrator on her estate in the state of Kansas, and no guardian appointed in said state for said minor heirs, Helen Maria and Susan Denman Jones, and that defendants are indebted to plaintiff on said note in the sum of $940.34; that said claim is just, due, and wholly unpaid. And affiant believes he ought to recover the sum of $940.34 on said note. Affiant says further, that all of said defendants are non-residents of the state of Kansas. Feed. H. Denman. “Sworn to and subscribed before me, this 1st day of July, 1878. [seal.] W. D. C. Smith, Notary Public.” The affidavit for publication was filed on the 18th day of August, 1879. Proper service by publication and proof thereof was made. On the 24th day of October, 1879 — 21 days after the answer was due by the terms of the publication — the adult defendant, Thomas W. Jones, having failed to answer, the court, on motion of the plaintiff, appointed James Rogers as guardian of the minor children (defendants). He filed the usual answer — general denial. On the 24th day of October, 1879, the case was called for trial. The court found that due service by publication had been made, and that proof thereof had been made and duly approved, tried the ease, rendered judgment for plaintiff, and practically ordered [70] the attached land to be sold for the payment of the judgment and costs, and that all the defendants be barred and foreclosed. An order of sale was duly issued to the sheriff of Shawnee county, appraisement duly made, sale made to J. L. Beverly, return of sheriff made, sale confirmed, deed to purchaser made by the sheriff, and by proper conveyances the title went from the purchaser at sheriff’s sale to Warniek, the defendant below. The note on which the Osage county case was brought was executed by Thos. W. Jones and Helen S. Jones, the father and mother of the minor children, on the 11th day of July, 1873, and was made in Kansas. Between that time and 1877, the father and children removed from the state, and in 1888 Thos. W. Jones, the surviving husband, conveyed his interest to Nellis, one of the plaintiffs. War-nick, defendant below, is in possession. The sheriff’s deed to Beverly was executed January 22, 1880, and recorded February 2, 1880. It will be seen from the above statement of facts that the petition was filed on the 16th day of July, 1878; that an order of attachment was issued on the same day, on an affidavit of date July 1, 1878, but that no affidavit for publication against the non-residents was filed until the 18th day of August, 1879, or for more than 13 months after the petition was filed and the order of attachment issued. Was a suit commenced at the time of the issue and service of the order of attachment? This is the first and most important question in the case. If it is answered in the negative, it disposes of the case, and no further inquiry is necessary. The code provides (¶ 4136, Gen. Stat. of 1889) that an action may be commenced by filing a petition and causing a summons to be issued thereon. In the case of Dunlap v. McFarland, 25 Kas. 488, it is said: “Of course an attachment cannot rightfully be issued before the action (of which it is only an incident) is commenced. The action was commenced when the petition and praaipe were filed, and when the summons was issued.” In the reported case the petition, pracipe and affidavit for attachment were filed April 16, 1878. On the 17th of April, [71] an affidavit for publication was filed, and the first publication of summons was made on the following 19th day of April. This court held that the order of attachment did not issue before the commencement of the action, as the first publication of summons related back to the filing of the petition. In the case of Bannister v. Carroll, 43 Kas. 64, it is said: “When at the time of filing a petition an affidavit for the constructive service by publication is filed, and publication follows in due time, this is causing a summons to issue thereon just as effectual for its purpose as the other mode of service.” All the sections of the code with reference to the time at which an action is to be deemed to have been commenced are carefully considered in the case, and the conclusion is reached that the proper construction to be given ¶4136 is— “That when a petition is filed and a summons served, or the first publication is made within 60 days, such service relates back to the time of the filing of the petition and prcecipe and other necessary papers, and by such relation the suit is to be deemed to have been commenced at the date of their filing.” It seems from a consideration of the various sections of the code that in any event a suit cannot be said to have been commenced unless the service of a summons is made or the first publication of notice is made within 60 days from the date of the filing of the petition and other necessary papers. This being so, no action had been commenced at the time of the issue, levy and return of the order of attachment that seized the real estate in controversy in this action. This fatal defect in the record of the Osage county case, under which the defendant in error claims title, compels us to recommend a reversal of the judgment. By the Court: It is so ordered. All the Justices concurring.