Feagin v. Davidson

SUPPLEMENTAL OPINION ON RE-PIEARING

LAVENDER, Justice.

Plaintiffs in error in their petition for rehearing urge that the original opinion failed to consider another ground urged by them for finding the affidavit for service by publication in Sirpless v. Graham, No. 5524, void on' the face of the record; said additional ground being that said affidavit was executed by the attorney for the plaintiff and stated that he (rather than the plaintiff) did not know and with due diligence was unable to ascertain the whereabouts)'etc. of the defendants.

Plaintiffs in error argue that under our previous holdings in Faulkner v. Kirkes, Okl., 276 P.2d 264, 47 A.L.R.2d 418, and Seigle v. Richardson, Okl., 317 P.2d 767, such an affidavit is void on its face and reflects a lack of jurisdiction over the defendants thereafter notified by publication. Defendants in error in their response to the petition for rehearing call our attention to the provisions of 12 O.S. 1961, §§ 177.1 and 177.2, which, we are told, have the effect of curing just such a “defect” as here presented.

In Armstrong et ux. v. Sewer Improvement Dist. No. 1, Tulsa County, et al., 201 Okl. 531, 199 P.2d 1012, 207 P.2d 917, we held valid a curative statute which authorized publication of a notice containing the substance of a petition for the creating of a sewer district (rather than requiring the publication of the petition proper, as the statute had previously required). We referred to Chicago R. I. & P. R. Co. v. Austin, 63 Okl. 169, 163 P. 517, L.R.A.1917D, 666.

“In consideration of legislation of this character the important question to be considered - in determining its validity and effect is to ascertain whether the acts which it attempted to validate would be effectual for the purposes intended if a valid law enacted prior to the doing thereof had directed that they be done as they were done. In such cases the authority of the Legislature to validate them thereafter is well established, and rights predicated upon such curable defects are not deemed meritorious nor entitled to the protection ordinarily accorded to vested rights.”

We agree with defendants in error in their interpretation of the cited statute. We hold that the defect in the affidavit arising from the failure of the affiant to state that the plaintiff “knew” certain things and had “exercised” diligence, etc., was a curable defect within the above rule.

It does not appear that any action was brought by plaintiffs in error challenging the validity of the service obtained in the Sirpless case within the limitation period prescribed by § 177.2 of the cited statute by reason whereof they are barred from now asserting such defects.

JACKSON, C. J., IRWIN, V. C. J., and WILLIAMS, BLACKBIRD, BERRY and HODGES, JJ., concur. DAVISON and McINERNEY, JJ., dissent.