Leslie v. McNeil

Oregon Supreme Court

Leslie v. McNeil

154 P. 884, 79 Or. 364, 1916 Ore. LEXIS 171

DecidedFebruary 8, 1916

StatusPublished

This text of 154 P. 884 (Leslie v. McNeil) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Leslie v. McNeil, 154 P. 884, 79 Or. 364, 1916 Ore. LEXIS 171 (Or. 1916).

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Opinion

Mr. Justice Benson

delivered the opinion of the court.

1. We find it necessary to consider but one of the several questions presented, and that is the sufficiency of the affidavit for publication of summons. It will be noted that this affidavit does not anywhere allege that either of the defendants has any property within the State of Oregon. The paragraph quoted in the above statement is the only reference to property that is to be found in the entire document. It is not even alleged that the sheriff has attached property belonging to the defendants, but simply that the officer did attach “certain real property situated in Coos County, Oregon.” This court has held that the affidavit for publication of summons must allege that the defendant has property within the state, and it failing to contain such an averment the court does not acquire any jurisdiction, and any judgment based thereon is void: Colburn v. Barrett, 21 Or. 27 (26 Pac. 1008).

It follows that the judgment must be affirmed, and it is so ordered. Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.

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Mr. Justice Benson

delivered the opinion of the court.

1. We find it necessary to consider but one of the several questions presented, and that is the sufficiency of the affidavit for publication of summons. It will be noted that this affidavit does not anywhere allege that either of the defendants has any property within the State of Oregon. The paragraph quoted in the above statement is the only reference to property that is to be found in the entire document. It is not even alleged that the sheriff has attached property belonging to the defendants, but simply that the officer did attach “certain real property situated in Coos County, Oregon.” This court has held that the affidavit for publication of summons must allege that the defendant has property within the state, and it failing to contain such an averment the court does not acquire any jurisdiction, and any judgment based thereon is void: Colburn v. Barrett, 21 Or. 27 (26 Pac. 1008).

It follows that the judgment must be affirmed, and it is so ordered. Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.

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154 P. 884, 79 Or. 364, 1916 Ore. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leslie-v-mcneil-or-1916.

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