Hargis v. Morse , 7 Kan. 415 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

Defendant in error brought ejectment against plaintiff in error. Upon trial he proved title by patent and deed. Defendant in error attempted to show a transfer of title to herself by judgment, sale, and sheriff’s deed. The evidence she offered was rejected, and this ruling is brought here for review. She offered the journal entry of judgment in the case of “ William H. Strode v. Enoch L. Morse,” in the Doniphan county district court, the order and the confirmation of sale, the appraisement, and the sheriff’s deed. Each was rejected on the ground that no legal service was shown to have been made in that action upon the defendant Morse. It is not claimed that there was any proof of service. The only testimony which could in any degree have any bearing in that direction was the testimony of the clerk of the district court, that, by fire in 1867 the files of all ' caseB disposed of, among them the case of “ Strode v. Morse,” were burned; and the -first sentence in the journal entry of judgment, which contains these words : “ the defendant still failing to answer or demur, although duly served by publication in the Troy Weekly Investigator, a weekly newspaper published in Doniphan county, and State of Kansas.” The testimony of the clerk tended neither to prove nor disprove the fact of service; at most it simply laid the' foundation for secondary evidence. The journal entry disclosed the manner in which service had been attempted to be made. A judgment rendered against a party not in court is void. It conveys no title, affects no rights. The title shown by the patent and deed in Morse could not be transferred by any judgment against him unless rendered in a court which had acquired jurisdiction of his person. Until such jurisdiction appeared, neither judgment, sale, nor deed were competent evidence: 2 Kas., 340. Neither is the difficulty avoided by the presumption which exists in favor of the proceedings in courts of general jurisdiction. That presumption arises only when the record is silent; it does not supersede the record. A party may not introduce part of a record, and relying on presumptions, withhold the remainder. In this case the plaintiff in error commenced her testimony with the entry of judgment. True, she proved that the files of the case were destroyed by fire ; but she made no attempt to prove what those files contained. The final record required by the laws of 1862 should contain the pleadings, the process, the return, etc.: Comp. Laws, p. 189, §402. In the absence of proof to the contrary we must presume such record was made, and was still in existence. If there was no final record, the files of the newspaper would have contained the secondary testimony, or it might have been derived from the officers of the court, the. parties, or attorneys in the ease. At any rate, until it appears, not merely that the papers are gone, but also that there is no secondary proof of their contents, there is no presumption, even in favor of the proceedings of a court of general jurisdiction,.from the existence of one part of a record that the remainder would, if produced, contain the facts necessary to give the court jurisdiction. This case never got so far as a question of presumptions; it stopped on a question of evidence. The judgment is affirmed.

All the J ustices concurring.