Kelm v. Loiland

Respondent filed a petition for a rehearing in which he strenuously insists that we overlooked certain decisions cited in his brief on appeal. The decisions are not mentioned in the opinion for the reason that they are not in point.

In the case of Hughes v. Fargo Loan Agency, 46 N.D. 26, 178 N.W. 993, the affidavit for publication of summons was insufficient, for the reason that the statement that the defendants were not residents of the state was sworn to on information and belief, and did not state their place of residence or that it was unknown to affiant.

In the case at bar the affidavit states that the defendant's postoffice address and place of residence is Lodi, California, and sworn to positively.

In Atwood v. Tucker (Atwood v. Roan) 26 N.D. 622, 51 L.R.A. (N.S.) 597, 145 N.W. 587, the affidavit was held insufficient, for the reason, that it stated only, "That the last known postoffice address of the . . . defendant . . . is unknown." It did not state the place of residence of the defendant, or that it was unknown to affiant, as the statute requires. The affidavit in the instant case gives both residence and postoffice address.

In Jablonski v. Piesik, 30 N.D. 543, 153 N.W. 274, the affidavit alleged, "That the whereabouts of the defendant in Canada is unknown to affiant, . . . that the postoffice address of said defendant is unknown to affiant." It does not state "the place of residence of the defendant if known, and if not known stating that fact." It was invalid for the further reason that the first publication of the summons was made before the affidavit was filed.

In Roberts v. Enderlin Invest. Co. 21 N.D. 594, 132 N.W. 145, the sheriff's return, required by subdivision 3 of § 7428, Comp. Laws 1913, to be filed with the affidavit, was not filed until thirteen days after the filing of the affidavit, and after the summons had been twice published.

In Dallas v. Luster, 27 N.D. 453, 147 N.W. 95, the court said: "No attempt was made even upon information and belief, to show that the plaintiff had no knowledge of the defendant's place of residence or address." The provision of § 6840, Rev. Codes 1905, relating to service by publication, were, in short ignored.

In Krumenacker v. Andis, 38 N.D. 500, 165 N.W. 524, the affidavit alleged that the wherabouts of the defendant are unknown instead of alleging that the place of residence of the defendant was unknown and it was held insufficient as the word whereabouts is not synonymous with residence.

Respondent quotes from Johnson v. Engelhard, 45 N.D. 11, 176 N.W. 134, as follows: "Under this section, each and every step required to be taken, if the summons were to be published, must also be taken to the point of publication before the personal service mentioned, is permissible. Unless all of such steps are taken, the personal service thus authorized, does not become equivalent nor have the same force and effect as the publication of the summons and the mailing of the summons and complaint in the manner provided for service by publication."

Respondent then argues: "That the foregoing language means, that before personal service can be made, the record should clearly show that all steps required by the statute had been taken and that the affidavit was on file before service was made in California."

In each of the cases cited the record showed a void judgment. In the instant case the complaint alleges that the affidavit was filed on the same day that the service of the summons and complaint were served upon the defendant in Lodi, California. If the summons and complaint were served before the filing of the affidavit the judgment is void. If the affidavit was filed first, the service is good. The plaintiff in this case is attacking a judgment of a court of record and asking to have it set aside and declared void in a collateral proceeding. The rule in such case is stated in 1 Freeman on Judgment, 819, § 383, as follows to wit.:

"The rule is that upon collateral attack of a domestic court of general jurisdiction the want of jurisdiction or invalidity of the judgment must affirmatively appear upon the record itself, and until the contrary appears it will be presumed that the court had jurisdiction. Nothing will be intended to be out of the jurisdiction of a court of general jurisdiction but that which expressly appears to be so. The absence from the record of the necessary jurisdictional facts will not overcome the presumption of jurisdiction, and that papers which ought to have been included in the judgment-roll are missing therefrom is not enough to make it affirmatively appear that the court had no jurisdiction. In the absence, therefore, of any showing in the record either one way or the other, a presumption arises in favor of the validity of the judgment of a court of general jurisdiction, and the existence of all matters going to the power of the court or tribunal to render the judgment."

In other words, the plaintiff must allege facts which if proven will show that the judgment is void, and this he has not done in the instant case. Because the summons and pleadings were served upon the defendant at Lodi, California, on the same day that the affidavit for service by publication was filed in the office of the clerk of court of Mountrail county, North Dakota, we can not assume that the service was made before the filing, that is a question of fact which must be alleged and proved.

The petition for rehearing is denied.

CHRISTIANSON, BIRDZELL, NUESSLE, and BURR, JJ., concur.