(19 Okl. 36)

CORDRAY v. CORDRAY. (Supreme Court of Oklahoma. Sept. 4, 1907.. 1. PROCESS--SERVICE BY PUBLICATION.

Where publication is relied on and jurisdiction is sought to be obtained of the defendant in an action by publication service alone, the affidavit for publication, as well as the publication notice, are matters jurisdictional, and, in order to obtain jurisdiction of the defendant in such case, both the affidavit for publication and the publication notice must comply with the provisions of the statute.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Process, § 114.]

2. DIVORCE--SERVICE BY PUBLICATION-AFFI

DAVIT.

An affidavit in an action for divorce, as a basis for service for publication, in the following form: "Salia M. Cordray, being first duly sworn, upon oath says that she is the plaintiff in the above-entitled cause, and that defendant, J. W. Cordray, is not a resident of the territory, but to the best of her knowledge and belief is a resident of, and that service of summons in this case cannot be had upon the said defendant in the territory of Oklahoma"does not comply with the provisions of the statute, and a judgment rendered in such case is void for want of jurisdiction over the defendant. [Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, § 261.]

3. SAME.

Such affidavit is defective, first, in that it fails to state what, if any, diligence, was used to procure personal service of summons upon the defendant; second, in that it fails to state the nature of the action; third, that it fails to state that at the time of the making of the affidavit the defendant was out of the territory of Oklahoma.

(Syllabus by the Court.)

Error from District Court, Canadian County; before Justice Clinton F. Irwin.

Action by Salia M. Cordray against J. W. Cordray. Judgment for plaintiff. Defendant brings error. Reversed.

Joseph G. Lowe and J. J. Carney, for plaintiff in error. Glitsch, Morgan & Glitsch, for defendant in error.

PANCOAST, J. This action was originally brought in the district court of Canadian county on November 12, 1902, by the defendant in error against the plaintiff in error, for divorce. On the day that the action was commenced, the plaintiff filed her affidavit for service by publication. Publication service was made by publishing the notice in a newspaper. The case was heard on the 23d day of February, 1903, the defendant making no appearance. The plaintiff was granted a decree of divorce and the custody of two minor children. The case remained in this condition until the 25th day of April, 1905, when the plaintiff in error appeared specially and filed his motion to vacate the judgment and decree of the court, for the reason, principally, that the court was without jurisdiction of the person of the defendant, because of the defects in the service. This motion was heard on the 13th day of December, and the motion denied. The appeal

is taken from the order refusing to vacate the judgment.

The contention of the plaintiff in error is that the judgment and decree granting the divorce and custody of the children is a nullity. The principal question presented and argued by plaintiff is that arising out of the affidavit for publication. This affidavit reads as follows: "Salia M. Cordray, being first duly sworn, upon oath says that she is the plaintiff in the above-entitled cause, and that defendant, J. W. Cordray, is not a resident of the territory, but to the best of her knowledge and belief is a resident of and that service of summons in this case cannot be had upon the said defendant in the territory of Oklahoma. [Signed] Salia M. Cordray. Subscribed and sworn to before me this 12th day of November, 1902. J. E. Jones, Notary Public. [Seal.]"

It is claimed that this affidavit is so defective and deficient that the court did not obtain jurisdiction of the defendant in this case. It is not seriously contended by the defendant in error that the affidavit is perfect, but it is claimed that it is not void, and, at most, only voidable. Where publication service is relied on, and jurisdiction is sought to be obtained of the defendant in an action by publication service alone, the affidavit for publication, as well as the publication notice, are matters jurisdictional, and, in order to obtain jurisdiction of the defendant in such case, both the affidavit for publication and the publication notice must comply with the provisions of the statute. Section 4276, Wilson's Rev. & Ann. St. 1903, provides that service may be made by publication in an action brought to obtain a divorce where the defendant resides out of the territory. Section 4377 also provides that, before service may be made by publication, an affidavit must be filed, stating that the plaintiff with due diligence is unable to make service of summons upon the defendant or defendants to be served by publication, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication. It will be seen at a glance that this affidavit is defective; that it does not fully comply with the statute upon the subject. If it is so far defective as to not give jurisdiction of the defendant, it is void, and not voidable merely. If, however, it is only so defective as to be voidable, and not void, then the court obtained jurisdiction.

It is contended, however, that it is not only voidable, but void, first, for the reason that it it fails to state that due diligence was used to procure personal service of summons upon the defendant; second, for the reason that 7 fails to state that the case was one of those mentioned in section 4276; third, that it fails to state that at the time of making the affidavit the defendant was out of the territory of Oklahoma. The affidavit is cer

tainly defective in each of the provisions contended for. There is no statement whatever as to diligence used, much less any statement of facts showing diligence in attempting to obtain personal service, nor is there any statement whatever as to the nature of the action for which publication service was attempted to be had. While the affidavit states that, to the best of the knowledge and belief of the plaintiff. the defendant is a resident of — -, and that service of summons in this case cannot be had upon the defendant in the territory, there is no showing that the defendant was not at that time personally at some point within the territory. The statement that to the best of the knowledge and belief of the plaintiff, if it relates to the question of the whereabouts of the defendant, is not sufficient, and the statement that service of summons cannot be had upon the defendant in the territory is not a statement of fact, but a conclusion. This statute was adopted in this territory from the state of Kansas, and has been passed upon repeatedly by that state. Among the early cases is the case of Shields v. Miller, 9 Kan. 390, which was a foreclosure case. The affidavit in that case was somewhat of the same form and substance as the one at bar, and the court in passing upon the case makes the statement that, from anything that appeared in the affidavit, the defendant may have been in the county where the action was brought, or even upon the land in controversy when the affidavit was filed, and therefore might easily have been served with summons personally. The Supreme Court further says that: "The affidavit is the foundation upon which jurisdiction is obtained. The plaintiff has no power or authority to obtain service by publication until after he has filed the proper affidavit. Without the affidavit, the attempted service by publication is a nullity, and without valid service every subsequent proceeding, including the judgment, the execution, order of sale, and deed, must necessarily be void."

Another case bearing upon the same subject is Grouch v. Martin, 47 Kan. 313, 27 Pac. 985.

In this case the affidavit for publication failed to state that the action was one of those mentioned in the "preceding section." Also, in the case of Adams v. Baldwin, 49 Kan. 781, 31 Pac. 681, the court held the same doctrine. Again, in the case of Patterson v. Patterson, 57 Kan. 277, 46 Pac. 304, being a divorce case, the court say that the affidavit would be insufficient where there was an entire want of any showing that the case was one of those mentioned in the "preceding section," which is section 78 of our Civil Code of 1905. That "the filing of an affidavit complying substantially with the terms of said section is a condition precedent to the obtaining of service by publication." Again, in the case of Shields v. Miller, 9 Kan. 390, and Claypoole v. Houston, 12 Kan. 324,

and Harris v. Claflin, 36 Kan. 543, 13 Pac. 830, the court deals with this subject, following the former decision. In the last cited case the affidavit was held to be void. In Lieberman v. Douglass, 62 Kan. 786, 64 Pac. 591, the court holds that "the allegation in the affidavit that this is one of the cases mentioned in section 72 of the Code of Civil Procedure in the laws of the state of Kansas is not a statement of facts as is required in the affidavit, but a mere conclusion of law, and renders the affidavit wholly insufficient under the statute as a basis upon which constructive service can properly be predicated." The court holds in this case that the defect in the affidavit is fatal, and that the sheriff's deed and judgment were void by reason of such judgment. The affidavit in this case should have stated that this was an action for divorce. This allegation is entirely omitted, and under the numerous decisions of the Supreme Court of Kansas such allegation is held to be necessary, and a want of it is such a defect that no valid judgment can be rendered. Numerous cases in other states upon similar statutes have been decided, and the holdings are uniform with those from the state of Kansas. In the case of Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. Ed. 959, the Supreme Court of the United States hold that "where the record states facts showing that a defendant is without the territorial limits of the court, and that he never appeared in the action, presumption of jurisdiction over his person ceases, and the burden of establishing the jurisdiction is upon the party who invokes the benefit or protection of the judg ment or decree."

So that, applying this rule, there can be no presumption in favor of the plaintiff below that the court acquired jurisdiction in any other way than as shown by the record in this case, and the burden was upon the plaintiff below to establish by the record a compliance with the statute for service by publication. This includes an affidavit showing that the action was one for divorce, that the defendant was a nonresident of the territory, the facts necessary to show that due diligence was used to obtain personal service, and that the defendant, although a nonresident, Iwas not within the limits of the territory. In addition to this, the burden was on the plaintiff to show that a copy of the petition had been mailed to the last known post-office address of the defendant. In the syllabus of the case of Galpin v. Page, supra, the court lays down the rule that a strict and literal compliance with the statutory provisions is necessary; that where the procedure is not according to the course of the common law, but under a special statutory provision and special powers thereby conferred, which are exercised in a special manner, such powers are exercised over a class not within its ordinary jurisdiction, and therefore no presumption of jurisdiction would attend the

judgment of the court. As stated in Lewis v. Lewis, 15 Kan. 181, these provisions with reference to publication service in divorce cases may be very inadequate, but they are worth something; and, whether adequate or not, it is the legislative direction, and, as such, must not be disregarded. They are precautionary measures calculated to guard against the danger of decreeing a divorce without the knowledge and presence of both parties. Again, our own court, in the case of Romig v. Gillett, 10 Okl. 186, 62 Pac. 805, has spoken upon this subject as follows: “Where a party seeks to bring a defendant into court upon service by publication under the Code, he must strictly comply with the provisions of the statute, and, unless this is done, the judgment will be void for want of jurisdiction of the person of the defendant." Again, in Rodgers v. Nichols, 15 Okl. 579. 83 Pac. 923. this court has spoken in a manner which we think is decisive of this case. From the conclusions which we have reached, we think that the district court erred in overruling the motion of the plaintiff in error to vacate the judgment, and for such error the decision of the court should be reversed.

All the Justices concurring, except IRWIN, J., who tried the case below, not sitting.

19 Okl. 119)

BARBE v. TERRITORY. (Supreme Court of Oklahoma. Sept. 4, 1907.) 1. LARCENY-INDICTMENT.

In a prosecution for larceny of domestic animals, an indictment which charges that the defendants "did then and there unlawfully, will fully, and feloniously, by stealth, take, steal, and carry away, without the consent and against the will of the true owner." certain personal property, "with the unlawful and felonious intent then and there" of the defendants "to deprive the said L. C. Knee thereof, and to convert the same to their own use and benefit." sufficiently charges a felonious intent to convert. 2. JUDGES -- CHANGE OF JUDGE - POWERS OF SUBSTITUTEd Judge.

Where an application for change of judge is granted on March 22, 1905, and the clerk of the district court of Comanche county is ordered to notify the clerk of the Supreme Court at Guthrie of such change of judge, and where. on the same day, at Woodward, Okl., at chambers, an order is made by the Chief Justice assigning another judge to "hold the district court in the county of Comanche, *** and to try. hear, and determine any and all cases and matters that may come before him in said district during the absence" of the regular presiding judge therefrom, held, the judge so assigned has jurisdiction to try, hear, and determine any case or matter which may come before him while acting under such order of the Chief Justice. 3. CRIMINAL LAW-ACCOMPLICES-EVIDENCE

CORROBORATION-SUFFICIENCY-LARCENY.

Evidence of witnesses other than accom plices examined, and held to be sufficient to tend to connect the defendant with the commission o the offense.

Error from District Court, Comanche County; before Justice B. F. Burwell. Robert Barbe was convicted of crime, and brings error. Affirmed.

See 86 Pac. 61.

Ross & Anderson, for plaintiff in error. P. C. Simon, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

GARBER, J. The plaintiff in error, jointly with Charles Barbe, J. Stien, and Roy Barbe, was indicted by a grand jury of Comanche county, charged with the larceny of certain domestic animals. A demurrer to the indictment being overruled, upon application, a change of judge was granted, and also a separate trial for each defendant. On the 24th day of March, 1905, the jury returned a verdict, finding the defendant guilty of stealing domestic animals as charged in the indictment. A motion for a new trial having been overruled, the defendant was sentenced to imprisonment in the territorial prison at Lansing, Kan., for a period of eight years. From that judgment, plaintiff in error appeals, and asks a reversal thereof upon three assignments of error, viz.: First, the demurrer to the indictment should have been sustained; second, the court was without jurisdiction; third, the evidence was insufficient to support the verdict.

The first two assignments of error upon the same state of facts having been passed upon by this court in a very able opinion by Mr. Justice Pancoast in the case of Charles Barbe (one of the persons jointly indicted with the plaintiff in error in this case) v. Territory. 16 Okl. 563, 86 Pac. 61, renders a restatement of those questions raised by the assignment of error and conclusions of law thereon at length unnecessary at this time. In that case, as in this, it was urged that the indictment did not charge that the property was taken with the felonious intent to convert. The indictment charged that the defendants, Charles Barbe, J. Stien, Robert Barbe, and Roy Barbe, then and there being, did then and there unlawfully, willfully, and feloniously, by stealth, steal, take, and carry away, without the consent and against the will of the true owner, two cows and eight steers and six young cows, the personal property of L. C. Knee, with the unlawful and felonious intent. then and there, of them, the said Charles Barbe, J. Stien, Robert Barbe, and Roy Barbe, to deprive the said L. C. Knee thereof, and to convert the same to their own use and benefit. In passing upon the sufficiency of the indictment Justice Pancoast, speaking for the court, said: "We are of the opinion that the indictment in this case fills the requirements of the law under the rule there enunciated. The unlaw

(Syllabus by the Court.)

felonious intent to deprive the owner of the property and to convert the same to the tak

er's use, are allegations which are all contained in this indictment."

The second assignment of error in that case, as in this, challenged the jurisdiction of the Chief Justice to issue an order, while holding court at chambers, at Woodward, Okl., designating Hon. Benjamin F. Burwell, Associate Justice of the Supreme Court, and presiding judge of the Third judicial district, to hold the district court of the county of Comanche, of the Seventh judicial district, and to try, hear, and determine any and all cases and matters that might come before him in said Seventh district during the absence of Hon. F. E. Gillette, the regular presiding judge, therefrom, for the reason that there had been no time sufficient for the clerk of the district court to transmit to the clerk of the Supreme Court at Guthrie a certified copy of the order granting a change of judge, and that the Chief Justice issued the order designating a judge without sufficient notice; it appearing that the change of judge was granted on March 22, 1905, and that the order issued by the Chief Justice was issued on the same day. In passing upon that question Justice Pancoast, speaking for the court, said: "While the statute provides that notice of an order granting a change of judge shall be transmitted to the clerk of the Supreme Court and shall be by him immediately presented to the court, if in session, or, if not, then to the Chief Justice, yet we are of the opinion that this provision is not the only one that may be pursued. The only purpose of this act is to give notice to the Supreme Court, if in session, or to the Chief Justice, if the court is not in session, that an order for a change of judge has been made; but if the court, if in session, or the Chief Justice, if the court is not in session, receives notice of such order in any other manner, we think the right clearly exists to act upon the notice, if the order for a change of judge has, in fact, been granted. The manner of giving or acquiring notice of the order granting a change of judge is not jurisdictional.

The remaining assignment of error is that the evidence was insufficient, and that the court should have sustained the motion of the plaintiff in error to instruct the jury to re

turn a verdict of acquittal. It is claimed that the conviction was secured upon the testimony of accomplices, which was not corroborated by such other evidence as tended to connect the defendant with the commission of the crime; it being admitted that the testiomny of the accomplices was amply sufficient to support the verdict, if sufficiently corroborated. An examination of the record reveals, not only the commission of this crime by the defendant, but ample corroboration thereof. Dr. L. C. Knee, the owner of the cattle, testified that he saw the defendant and others in a pasture about. five miles southeast of Lawton on the day preceding the night they were stolen, April 24th. Mrs. Frances Davis testified that the defendant and his wife, and other parties. who were were subsequently convicted of the stealing of these same cattle, were at her house on April 24th, and that the defendant, with other parties, left her house that evening, and did not return until the next morning, at about 7 or 8 o'clock. John Burton testified that he saw the defendant, with other persons, driving the stolen cattle along about sundown in the direction of the ranch or big pasture where the defendant kept his cattle. George M. Rattan testified that he trailed the cattle into the mountains and found them among defendant's cattle on April 29th. From this brief statement of the substance of the testimony of disinterested witnesses, and from a careful reading of the entire record, it clearly appears that there was sufficient corroborating evidence tending to connect the defendant with the crime of which he was convicted and sentenced, and, when the corroborating evidence tends to connect the defendant with the commission of the offense, the requirements of the statute have been fully satisfied.

It clearly appearing that the defendant has had a fair and impartial trial, and that the evidence is amply sufficient to sustain the verdict, the judgment of the district court of Comanche county will be affirmed.

BURWELL, J., who presided in the court below, not sitting. All the other Justices concurring, except IRWIN, J., absent.

(76 Kan. 232)

B. PRINZ & CO. v. MOSES. (Supreme Court of Kansas.

July 5, 1907. Rehearing Denied Oct. 5, 1907.)

NEW TRIAL-INSUFFICIENT EVIDENCE.

It is error to overrule a motion for a new trial, when a material fact necessarily involved in the verdict is wholly unsupported by the evidence.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 142, 143.]

(Syllabus by the Court.)

Error from District Court, Montgomery County; Thomas J. Flannelly, Judge.

Action by B. Prinz & Co. against F. C. Moses. Judgment for defendant, and plaintiffs bring error. Reversed.

See 69 Pac. 1128.

Plaintiffs in error were engaged in the mercantile business at St. Louis, Mo., and one L. H. Levison, who was engaged in the clothing business in Caney, Kan., became indebted to them in a large amount on account of clothing purchased. The account was settled by a note which was secured by a chattel mortgage on the stock of goods for $2,000. The debt due plaintiffs in error being unpaid, they took possession of the goods in controversy under their chattel mortgage. Afterwards, in January, 1896, the defendant in error as sheriff took the goods from plaintiffs in error by a writ of attachment issued in a suit instituted by J. S. Brittain Dry Goods Company against Levison, in which, upon order of the court, the goods were returned the following July. At the time the property was attached, its value as shown by an invoice then made was $3,815.03. When returned, it was sold and brought only $2,000. The plaintiffs in error then brought this action in the district court of Montgomery county May 1, 1897, to recover damages sustained on account of the attachment. The jury returned a verdict in favor of the defendant, and found specially that the goods did not depreciate while in custody of the sheriff, that they were worth only $2,500 when taken, and were of that value when returned. The plaintiffs filed a motion for a new trial, which being overruled they bring the case here for review.

S. M. Porter, for plaintiff in error. J. B. Ziegler and S. H. Piper, for defendant in

error.

GRAVES, J. On trial in the district court, the defendant contended that the plaintiff was not the owner of the note and mortgage under which the goods had been taken from Levison, they having been assigned to a trustee for the benefit of creditors, and therefore the plaintiff had no authority to maintain the action. This was the principal and controlling question litigated in the case. To establish this contention, the defendant placed in evidence two deeds of trust, each being a conveyance to the same trustee, conferring power upon him to sell the property

91 P.-50

conveyed, and out of the proceeds make payment of certain debts therein specified, when due, if not paid by the grantors. The description of the property conveyed reads: "All of the stock of merchandise consisting of piece goods, clothing, trimmings, linings, etc. also all store and office fixtures and furniture including safe, also all tools and implements, patterns and machinery used in the manufacture of clothing now located in the business house known as No. 425 North Seventh street in the city of St. Louis, Missouri, and now occupied by the said B. Prinz & Company in the conduct of a general wholesale clothing business, also all book accounts payable to said firm of B. Prinz & Company as the same appear upon the books of said firm now in said building aforesaid." The plaintiff duly objected and excepted to the introduction of these deeds in evidence. They were executed October 10, 1896, almost 10 months after the execution of the note and mortgage, and more than 9 months after the goods had been taken thereunder. It is clear that this note and mortgage are not covered by the description of the property given in the deed. If by the words, "also all book accounts payable to said firm of B. Prinz & Company as the same appear upon the books of said firm now in said building aforesaid," the parties intended to include this note and mortgage in Caney, Kan., such fact should be clearly shown. We are unable to find any evidence in the record which tends to sustain such conclusion.

The jury could not have returned a general verdict for the defendant without finding that the plaintiff did not own the note and mortgage under which the goods were taken, and upon this point the verdict is wholly unsupported by the evidence. This was an error for which a new trial should have been granted.

The judgment of the district court is reversed, with direction to sustain the plaintiff's motion for a new trial. All the Justices concurring.

(76 Kan. 271) ATCHISON, T. & S. F. RY. CO. v. MCELROY. (Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 5, 1907.)

1. RAILROADS-LICENSEES ON TRACK-NEGLI

GENCE.

When a railroad company stops a passenger train where other tracks are between it and the depot platform, the rights of people having business with such train, and the duty of the company toward them, are the same as if all the intervening space between the depot and the train constituted the platform.

2. SAME-LOOKING AND LISTENING.

Under such circumstances, passengers and other persons rightfully there have a right to assume that they will be protected from danger by the company, and are under no obligations to anticipate and guard against the approach of other trains. The ordinary rule of "look and listen" does not apply to such a situation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, & 891.]