Bantley v. Finney

62 N.W. 213, 43 Neb. 794, 1895 Neb. LEXIS 412

• Court: Nebraska Supreme Court
• Decided: February 6, 1895
• Docket: No. 5877
• Status: Published

Opinion

Ragan, C.

On the 25th day of April, 1882, Gottlieb Bantley was the owner of the southeast quarter of section 24, in township 10 north, and range 7 east of the 6th P. M., in Lancaster county, Nebraska. On the 19th day of July, 1882, one Richard O. McWilliams brought a suit in equity in the district court of Lancaster county against said Bantley, the petition in which alleged, in substance, Bantley’s •ownership of said real estate on said 25th of April, and that on said day Bantley had agreed, in writing, to sell and convey to him, McWilliams, said real estate on certain terms and conditions, with all of which McWilliams on his part had complied; and the petition prayed for a decree of the court to compel Bantley to specifically perform his contract of sale. Bantley was a non-resident of the state of Nebraska, was not present in said state, but resided in and was a citizen of the state of Pennsylvania. The only service had upon Bantley in said suit was service by publication, as provided for by sections 77, 78, 79, and SO of the Code of Civil Procedure. Bantley made no appearance in the action, either personally or by counsel, and on the 21st of October, 1882, his default was entered by the district court of Lancaster county and a decree, rendered ordering and directing him to convey the above described premises to McWilliams, and that in default of such conveyance the decree should have the effect of a deed. Bantley did not comply with the decree of the court, and McWilliams, in compliance with the decree, deposited with the clerk of the court the consideration which the decree found McWilliams was to pay Bantley for the land, and thereupon took possession of the real estaLe and after-wards conveyed it by warranty deed to one Lorinda Einney. On the 21st day of February, 1891, Bantley brought this suit in equity in the district court of Lancaster ■county against said Finney, alleging that Finney claimed an interest in said real estate by virtue of tbe decree, already mentioned, rendered in the case of McWilliams v. Bantley. The prayer of Bantley’s petition in this case was that' the decree in McWilliams v. Bantley might be adjudged void, that the possession of said real estate might be delivered to him, and for an accounting of the rents and profits of said real estate. The district court found the issues against Bantley and rendered a decree dismissing his case, from which he has appealed.

Section 78 of the Code provides that before service can be made by publication an affidavit must be filed that service of a summons cannot be made within this state on the-defendant or defendants to be served by publication, and that the case is one of those mentioned in section 77 of the Code of Civil Procedure; and when such affidavit is filed, the party may proceed to make service by publication., In the suit of McWilliams v. Bantley the petition, as already stated, was filed with the clerk of the district court of Lancaster county on the 19th day of July, 1882. On the same date there was filed in the office of said clerk of said court in said suit of McWilliams v. Bantley a paper in word» and figures as follows:

“In the District Court of Lancaster County, Nebraska.

“ Richard C. McWilliams, plaintiff, v. Gottlieb Bantley, dependant. } Affidavit.

“ State of Nebraska, I XT/N a TT11 — k I '/\-rr»TmTy Lancaster County.

“Joseph R. Webster, being first duly sworn, on his oath says: I am the attorney of record of Richard C. McWilliams, plaintiff in the above entitled cause. On the 19th day of July, A. D. 1882, he filed a petition in the district court of Lancaster county against Gottlieb Bantley, the object and prayer of which is to enforce the specific performance of a written contract for the sale of certain premises described as the southeast quarter of section 24, township 10 north, of range 7 east, of sixth principal meridian, made and entered into by and between the said defendant as vendor by J. P. Walton,his agent duly authorized in writing, and this plaintiff as vendee, on or about the 15th day of June’ A. D. 1882, for sale of said premises at the price of $2,400, exclusive of agent’s commissions, $800 payable in hand, $533J on or before two years, and two like sums on or before three and four years, respectively, with interest at the rate of seven per cent per annum, to be secured by mortgage on said premises, and said plaintiff is absent from the county of Lancaster, and affiant makes this affidavit in his behalf for' that reason. Said defendant is a non-resident and resides at Johnstown, in the state of Pennsylvania, and is absent from the state of Nebraska, and service .of summons cannot be made within the state on him, wherefore the plaintiff prays for service by publication. J. R. Webster.

“Signed in my presence and sworn to before me July, 1882. --, Notary Public.”

Indorsed: “Dist. Ct. Lancaster. Richard C. McWilliams v. Gottlieb Bantley. Affidavit for Publication. Filed July 19, 1882 A. D. A. D. Burr, D. C. Clerk. J. R. Webster for Plff.”

This affidavit or paper contained all the averments of fact necessary to authorize McWilliams to make service upon Bantley by publication, and to give the court jurisdiction of Bantley if such service by publication should be made and proved as provided by sections 79 and 80 of the Code of Civil Procedure. There is no contention here that the averments in the paper or affidavit were not sufficient both as to substance and form, nor that the publication: made and proved in pursuance of such paper or affidavit did not in all respects conform to the statute. But it will be observed that the affidavit or paper, though duly entitled in the case of McWilliams v. Bantley, though it has, a proper venue, though it is entitled an affidavit and purporta bo be an oath made by J. R. Webster, the counsel of McWilliams, signed by Webster and duly filed in the case by the clerk of the court, has attached to it no jurat or certificate of the clerk or any other officer authorized to administer oaths that such paper or affidavit was sworn to by said Webster before such officer.

The argument of the appellant is that until the affidavit required by section 78 of the Code of Civil Procedure was made and filed in the case of McWilliams v. Bantley, the ■court could acquire no jurisdiction over Bantley by service by publication. There can be no question as to the correctness of this argument. The court’s jurisdiction in that case over Bantley depended upon service by publication first having been made and proved as provided by sections 79 and 80 of the Code of Civil Procedure, and the notice for its validity depended upon an affidavit made and filed as provided by said section 78. The appellant further contends that because the affidavit filed by Webster in McWilliams v. Bantley has not attached thereto the jurat or certificate of some officer authorized to administer oaths certifying that Webster signed and swore to the said affidavit, that therefore such paper is not an affidavit within the meaning of said section 78; consequently, that the service by publication was invalid, that the court acquired no jurisdiction of Bantley; and that its decree was a nullity.

On the trial of this case in the district court Finney was permitted to prove by the oral testimony of Webster, McWilliams’ counsel in the suit against Bantley, and by one Burr, who was the clerk of the court on the 19th day of July, 1882, that the affidavit filed in the case of McWilliams against Bantley on said dale was in fact sworn to on said date by said Webster before said clerk, and that the latter, through an oversight, neglected to attach his certificate or jurat to such paper to the effect that Webster had in fact sworn to it. The argument of the appellant is that such testimony was incompetent; that the record in McWilliams v. Bantley must speak for itself; and that •the decree in that case must stand or fall on the record as ■it exists.

An analysis of the case before us then brings us face to face with this question : Was it competent in this case for Einney to show by parol that the affidavit for constructive ■service filed in the case of McWilliams v. Bantley was sworn to by Webster, the party who made and signed such affidavit before the clerk of the court? The evidence of Webster and Burr that the former did swear to the affidavit signed by him is sufficient to support the finding of the district court that Webster did in fact swear to the affidavit he filed if the evidence was competent. “An affidavit is a written declaration under oath made without notice to the adverse party.” (Code of Civil Procedure, sec. 367.) In Harris v. Lester, 80 Ill., 307, it is said: “An affidavit is simply a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths. It does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption whatever, it is nevertheless an affidavit.” In Bates v. Robinson, 8 Ia., 318, a party had made an affidavit, sworn to it before an officer authorized to administer oaths, but had not signed the affidavit. The officer administering the oath had attached his jurat or certificate to the affidavit that the party had sworn to it, and the court held that the affidavit was good; that it was not necessary to the making of a good affidavit- that the party making it should sign it. In Shelton v. Berry, 19 Tex., 154, an affidavit is thus defined: “An affidavit is, originally, a voluntary oath taken before an officer. In practice it is an oath or affirmation, reduced to writing, and sworn or affirmed before some officer who has authority to administer it, and by whom it is certified. It is not necessary that it should be signed by the affiant.” In Hitsman v. Garrard, 16 N. J. Law, 124, it is said that an affidavit need not be signed. by the affiant unless such, signature is required by some statute or rule of court. A contrary rule was announced in Hargadine v. Van Horn, 72 Mo., 370, but by a divided court. The argument of the-appellant that no affidavit for service by publication was filed in the case of McWilliams v. Bantley because what, purported to be such affidavit in said case had attached thereto no jurat or certificate of an officer authorized to-administer oaths that Webster in fact signed and swore to the statement in the affidavit, we think, cannot be sustained. The paper assailed as not being an affidavit was in writing, it was signed, and it was filed. Section 78 of' the Code of Civil Procedure does not expressly require such an affidavit to be signed; but a fair construction of' the section requires such affidavit to be in writing. The question here then is not whether Webster made an affidavit, whether it was in writing, whether it was filed, nor whether it was signed by him; but the question is, did he-swear to that affidavit? If he swore to it, then it in all respects complied with the statute. The service by publication based thereon was proper, and the court had jurisdiction.

Is the fact that the affidavit made and filed by Webster-has attached thereto no jurat or certificate of an officer authorized to administer oaths, certifying that Webster in fact swore to the statement written in the affidavit, conclusive proof that Webster did not swear to the affidavit or the facts stated therein? We think not. If such affidavit contained the jurat or certificate of the clerk of the court,, such certificate or jurat would be prima facie evidence that Webster had sworn to the oath or affidavit signed by him. The jurat or certificate is no part of the oath or affidavit,, but is simply evidence that the oath was made or the affidavit was sworn to. It is like the acknowledgment of a. deed, which is no part of the deed itself, but authorizes the deed to be recorded and read in evidence without proving-the signatures to the deed; and so here the jurat or certificate attached to an affidavit, if the officer making such jurat or certificate had authority to administer oaths, enables such affidavit to be read in evidence as the oath of the party whom the officer certifies made such oath. (Ladow v. Groom, 1 Denio [N. Y.], 429; Hitsman v. Garrard, 16 N. J. Law, 124; Morris v. State, 2 Tex. App. Ct., 503.) Bantley’s case against Finney is based upon the allegation in his petition that the affidavit filed for service by publication in the-ease of McWilliams v. Bantley was not sworn to. This allegation was denied by Finney in his answer herein, and hence we have the issue of 'fact, did Webster swear to the affidavit which he filed in the suit of McWilliams v. Bantley? To show that such affidavit was not sworn to Bantley in the trial of this suit put in evidence the record of the case of McWilliams v. Bantley, and this record did not positively show that Webster swore to the affidavit filed for service by publication. Was the parol evidence of Webster and Burr that the former did swear to the affidavit which he filed competent? We have hot been referred to, nor have we been able to find, any case where the precise question has been argued and determined.

Sears v. Dacey, 122 Mass., 388 was an action brought in Massachusetts on a judgment recovered in another state. The issue was whether the defendant was served with process in the state in which the judgment was rendered. He introduced evidence that at the time the process was served in the foreign state he was not in said state and had not been since that time. The court held that the plaintiff might introduce evidence to show that the defendant was in the foreign state at the time the record showed the process in that case was served on him.

Cook v. Jenkins, 30 Ia., 452, was an action in ejectment. The defendants claimed title to the land under a judicial sale thereof based upon attachment proceedings. Cook’s contention was that the sale and the attachment proceedings were void, as the only service upon him was by publication, he at the time being a non-resident of the state of Iowa, and that the affidavit made and filed to procure the issuance of the attachment against him or his property was never sworn to by the party instituting the attachment proceedings. This contention was based upon the fact that the affidavit in the attachment proceedings, although it contained the jurat or certificate of an officer authorized to administer oaths, such jurat was not signed by such officer, and the court held that the contention was not sustained; and that although the jurat to the affidavit was not signed by the officer administering the oath, yet it had been sufficiently shown by the evidence that the affidavit was in fact sworn to. To the same effect see Kruse v. Wilson, 79 Ill., 233. This suit was also one in ejectment, the defendant claiming title to the land under judicial sale, based on attachment proceedings, the plaintiff claiming the attachment proceedings were void, because the affidavit was not sworn to. Breese, J., speaking for the court on this point, said: “On objection made in the circuit court, on the trial of this ejectment, that the affidavit was not sworn to, and was therefore void, William A. Hemon was sworn, and he testified he signed the affidavit, and swore to it at the time, in the clerk’s office, before the deputy clerk. He was there to commence a suit in attachment, and swore to the affidavit for that purpose. He signed it there at the counter, at the same time that he swore to it. * * * If an oath was administered, and by the proper officer, as it assuredly was, the law was satisfied, and the mere omission of the clerk to put his name to an act which was done through him as the instrument, should not prejudice an innocent party, who has done all he was required to do. The clerk’s omission to write his name, where it should have been written, was not the fault or neglect of the affiant. He •signed and swore to the affidavit. The clerk filed it,” etc. See, also, Tallman v. Ely, 6 Wis., 242, where it is said: “Where there is a vagueness in a record upon the question of the appearance of a party defendant, parol proof of the appearance, as a fact, is competent. Such evidence does not tend to vary or contradict the record but to support it.” (See, also, Jamison v. Weaver, 51 N. W. Rep. [Ia.], 65.)

The oath or affidavit made by Webster did not lose its vitality because of the omission of the clerk to certify then and there that Webster had taken this oath. If the clerk had attached his jurat to this affidavit made by Webster, then the affidavit, for all purposes and in all places, would have been prima facie evidence at least that Webster had made the oath, that is, that he was sworn by the clerk to the truth of the facts set forth in the affidavit. Whether Webster swore to this affidavit was made an issue — and the cardinal issue — in the ease. It was a question of fact; and why should not it be proved, as any other fact, by any competent obtainable evidence? The evidence did not contradict the record in the case of McWilliams v. Bantley. That record did not affirmatively recite that Webster did not swear to the affidavit. It at least left that fact in doubt. If one by a suit in equity should seek to have a personal judgment rendered against him set aside upon the sole ground that he was never served with process in such case, and to prove that fact should put in evidence the record of the suit in which the judgment was rendered, from which it should appear that a summons had been issued directed to the defendant in the judgment and returned by the sheriff indorsed that on a certain day and at a certain place, he, the sheriff, had served said summons on said party therein mentioned, but the name of the sheriff should not be signed to such return, can it be doubted that it would be competent to show by parol by the sheriff that his failure to sign his name on the summons was an oversight, and that he did in fact serve the summons as therein directed and returned? We reach the conclusion, therefore, that in this case parol evidence was competent to show that Webster did swear to the affidavit which he filed in the case of McWilliams v. Bantley, although such affidavit had attached thereto no jurat of an officer authorized to administer oaths certifying that Webster had in fact sworn to such affidavit. It follows from this that the decree assailed in this case was not void, but that the court pronouncing it had jurisdiction both of the subject-matter of the action and of the defendant, therein.

Mr. Bantley in his petition filed in this case alleged that the decree in McWilliams v. Bantley was fraudulently obtained, in that McWilliams was not the real party in interest, but “ was the fraudulent conduit for J. H. McMurtry.” On the trial in the district court there was considerable evidence introduced on the issue made by this allegation of Bantley’s petition and the answer of Finney thereto. This evidence was conflicting, and the district'court found the issue against Bantley; and we cannot say that It came to an incorrect conclusion. The decree of the district court is

Affirmed.