Adams v. Baldwin

The opinion of the court was delivered by Horton, C. J.: On the 7th day of July, 1888, this action was commenced in the district court of Shawnee county by Daniel P. Baldwin et al., to recover upon a written contract the sum of $480.20 and interest, from N. A. Adams’and D. G. Inskeep, as partners under the name of Adams & Inskeep. Upon the trial, it was admitted that $478.47 was due the plaintiffs, if they were not concluded by the garnishment proceedings commenced in the district court of Riley county, in this state, on the 12th of July, 1888, in the case wherein N. A. Adams filed his petition against Daniel P. Baldwin et al., to recover $1,800. No service of summons was made in this state upon either of the defendants in that case. The service was by the sheriff of Cass county, Indiana. There was no appearance by the defendants. In that action, Adams recovered judgment for $1,800, and, in obedience to the order of the court, Adams & Inskeep, garnishees, answered that they were indebted to Daniel P. Baldwin et al. in the sum of $478.87. The court directed that this sum be paid into court, which was accordingly done, and the garnishees discharged. At the trial of this case in the district court of Shawnee county, defendants below offered in evidence the record of the judgment rendered in the district court of Riley county. It was ruled out, upon the ground that the court rendering the judgment had no jurisdiction, and therefore that it was void. Complaint is made of this ruling. Section 76 of the civil code provides: “ In all cases where service may be made by publication, personal service of summons may be made out of the state by the sheriff of the county in which such service may be made.” To obtain service by publication, an affidavit must be filed stating that the plaintiff, with due diligence, is unable to make service of the summons upon the defendant or defend [787] ants to be served, and showing that the case is one of those mentioned in §72 of the code. (Civil Code, §72.) In the action commenced in Riley county, there was no affidavit in accordance with the provisions of § 73 of the civil code. Personal service of summons cannot be made out of the state excepting in cases where service may be made by publication. Service cannot be made by publication without the filing of an affidavit as prescribed by § 73 of the code. As no such affidavit was filed, no personal service of summons could be made, and therefore the district court of Riley county acted without jurisdiction, and the ruling of the trial court must be sustained. (Shields v. Miller, 9 Kas. 390; Case v. Bartholow, 21 id. 306; Harris v. Claflin, 36 id. 543.) It is earnestly argued that, as personal service of the summons was made out of the state upon the defendants, in the action in Riley county, the affidavit prescribed by § 73, showing the defendants could not be served in Kansas, would have accomplished no useful purpose, and therefore was unnecessary and should not be required. If, however, an affidavit embodying the statements required for service by publication is not necessary, when personal service is made out of the state, then the provisions of § 73 of the code have no' application in case of service out of the state. If this be so, no affidavit is necessary to be filed, where service out of the state is sought to be made, showing the case is one of those mentioned in § 72 of the civil code. It is conceded that the effect of a judgment upon personal service out of the state would be identical with that of a judgment rendered upon service by publication, so far as applying to the property within the state is concerned. No personal execution could be issued upon such a judgment in either case. Therefore it seems to us that if personal service is to be made out of the state, there ought to be on file in the trial court some showing, by affidavit or otherwise, that the case is one of those mentioned in § 72. Unless it is such a case, the court has no jurisdiction if personal service is made out of the state. The records of the court should show jurisdiction, and there [788] fore the necessity of an affidavit on file, before personal service out of the state is attempted, showing that the case is one of those mentioned in § 72. If this much is necessary to be shown where personal service out of the state is sought to be made, then § 73 of the civil code has some application. If any part of § 73 is applicable, when service is made out of the state, then all of its provisions must be followed. Before the service in the Riley county case was had in Indiana, the affidavit prescribed in § 73 ought to have been made and filed. The judgment of the district court will be affirmed. All the Justices concurring.