Romig v. Gillett , 10 Okla. 186 ( 1900 )

Opinion of the court by

Hainer, J.:

We think that the court properly sustained the motion to vacate and set aside the judgment on the ground that the affidavit for service of publication was wholly insufficient, and therefore the court had no jurisdiction of the person of the defendant in error. The only service had in this case was by publication. The defendant in error, Myrtle Gillett, filed no pleading and made no appearance in the action. Judgment was entered against her by default. . The affidavit in this case was made by the attorney of record of the plaintiff. It states that, “upon information and belief that the said defendants Don A. Gillett and Myrtle Gillett are non-residents of the Territory of Oklahoma, and that service of summons cannot be made on the said defendants Don A. Gillett and Myrtle Gillett within the said Territory of' Oklahoma.”

The affidavit proves nothing. It does not state facts, but only affiant’s belief that the defendants were nonresidents of the Territory of Oklahoma. Such a statement is but a mere hearsay declaration of counsel for the plaintiff, and does not amount to legal proof.

In Hefern v. Davis, 10 Wis. 443, it wan beld by tbe supreme court of Wisconsin that:

“Statements on information and belief merely, that the defendant’s residence cannot be ascertained, or that his whereabouts cannot be discovered, are not sufficient evidence of non-residence in the state to authorize an order of publication of the summons. Such statements are but hearsay, and do not amount to legal' proof.”

The affidavit being insufficient the court had no jurisdiction of the defendant in error. We think this defect in the affidavit is fatal to the service by publication. The affidavit is the .basis upon which jurisdiction is obtained. The plaintiff has no authority to obtain service by publication until after he has filed the proper affidavit, and without such affidavit the publication is absolutely void. Where a party seeks to bring a defendant into court by service by publication under the code, he .must strictly comply with the requirements of the statute, and unless this be done the judgment will be vacated and set aside for want of jurisdiction of the person of the defendant. It must follow that where the service is absolutely void, every subsequent proceeding including the judgment, the order of sale, the confirmation of the sale, and the sheriff’s deed, must necessarily be void.

In Shields v. Miller, 9 Kan. 390, the supreme court of that state declared that:

“In an action to foreclose a mortgage on real estate, service may be made upon a defendant not residing within-the state, by publication; but before such service can be made, an affidavit must be filed showing that service cannot be made personally on the defendant within the state. And where a service by publication has been made in such a case, without said affidavit being first filed, the service is void; and every subsequent proceeding in the case founded on such service, including the j' dgment, ttm execution or order of sale, the sale, and the sheriff's deed, must also necessarily be void.”

The same rule was also announced by the supreme court of Kansas in the cases of Harris v. Claffin,36 Kan. 543; and Grouch v. Martin, 47 Kan. 313.

The judgment of the district courl is tbei-cfm’e affirmed at the costs of the appellants.

McAtee, J., having presided in the court bemw not •sitting; all of the other Justices concurring.