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(19 Okl. 36)

is taken from the order refusing to vacate CORDRAY V. CORDRAY.

the judgment. (Supreme Court of Oklahoma. Sept. 4, 1907.

The contention of the plaintiff in error is

that the judgment and decree granting the 1. PROCESS-SERVICE BY PUBLICATION. Where publication is relied on and jurisdic

divorce and custody of the children is a nultion is sought to be obtained of the defendant in lity. The principal question presented and an action by publication service alone, the argued by plaintiff is that arising out of the affidavit for publication, as well as the publication notice, are matters jurisdictional, and, in

affidavit for publication. This affidavit reads order to obtain jurisdiction of the defendant in

as follows: "Salia M. Cordray, being first such case, both the affidavit for publication and duly sworn, upon oath says that she is the the publication notice must comply with the pro

plaintiff in the above-entitled cause, and that visions of the statute.

defendant, J. W. Cordray, is not a resident [Ed. Note.For cases in point, see Cent. Dig. vol. 40, Process, $ 114.]

of the territory, but to the best of her 2. DIVORCE--SERVICE BY PUBLICATION-AFFI

knowledge and belief is a resident of DAVIT.

and that service of summons in this case An affidavit in an action for divorce, as a cannot be had upon the said defendant in basis for service for publication, in the following

the territory of Oklahoma. [Signed] Salia form: “Salia M. Cordray, being first duly sworn, upon oath says that she is the plaintiff M. Cordray. Subscribed and sworn to before in the above-entitled cause, and that defendant, me this 12th day of November, 1902. J. E. J. W. Cordray, is not a resident of the terri

Jones, Notary Public. [Seal.]" tory, but to the best of her knowledge and belief is a resident of -, and that service of

It is claimed that this affidavit is so summons in this case cannot be had upon the defective and deficient that the court did said defendant in the territory of Oklahoma" not obtain jurisdiction of the deferdant in does not comply with the provisions of the stat. ute, and a judgment rendered in such case is

this case. It is not seriously contended by the void for want of jurisdiction over the defendant.

defendant in error that the affidavit is perfect, [Ed. Note.-For cases in point, see Cent. Dig.

but it is claimed that it is not void, and, at vol. 17, Divorce, § 261.]

most, only voidable. Where publication sery3. SAME.

ice is relied on, and jurisdiction is sought Such affidavit is defective, first, in that it to be obtained of the defendant in an action fails to state what, if any, diligence, was used to procure personal service of summons upon

by publication service alone, the affidavit for the defendant; second, in that it fails to state publication, as well as the publication notice, the nature of the action; third, that it fails to are matters jurisdictional, and, in order to state that at the time of the making of the affi

obtain jurisdiction of the defendant in such davit the defendant was out of the territory of Oklahoma,

case, both the affidavit for publication and (Syllabus by the Court.)

the publication notice must comply with the

provisions of the statute. Section 4276, WilError from District Court, Canadian Coun

son's Rev. & Ann. St. 1903, provides that servty; before Justice Clinton F. Irwin.

ice may be made by publication in an action Action by Salia M. Cordray against J. W.

brought to obtain a divorce where the deCordray. Judgment for plaintiff. Defend

fendant resides out of the territory. Section ant brings error. Reversed.

4377 also provides that, before service may Joseph G. Lowe and J. J. Carney, for be made by publication, an affidavit must be plaintiff in error. Glitsch, Morgan & Glitsch, filed, stating that the plaintiff with due for defendant in error.

diligence is unable to make service of sum

mons upon the defendant or defendants to PANCOAST, J. This action was originally be served by publication, and showing that brought in the district court of Canadian the case is one of those mentioned in the county on November 12, 1902, by the de preceding section. When such affidavit is fendant in error against the plaintiff in error, filed, the party may proceed to make service for divorce. On the day that the action was by publication. It will be seen at a glance commenced, the plaintiff filed her affidavit that this affidavit is defective; that it does for service by publication. Publication serv not fully comply with the statute upon the ice was made by publishing the notice in subject. If it is so far defective as to not a newspaper. The case was heard on the give jurisdiction of the defendant, it is void, 23d day of February, 1903, the defendant and not voidable merely. If, however, it is making no appearance. The plaintiff was only so defective as to be voidable, and not granted a decree of divorce and the custody void, then the court obtained jurisdiction. of two minor children. The case remained in It is contended, however, that it is not only this condition until the 25th day of April, voidable, but void, first, for the reason that 1905, when the plaintiff in error appeared it fails to state that due diligence was used specially and filed his motion to vacate the to procure personal service of summons upon judgment and decree of the court, for the the defendant; second, for the reason that in reason, principally, that the court was with fails to state that the case was one of those out jurisdiction of the person of the defend mentioned in section 4276; third, that it ant, because of the defects in the service. fails to state that at the time of making the This motion was heard on the 13th day of affidavit the defendant was out of the terDecember, and the motion denied. The appeal ritory 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. 32, 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 withou valid service every subsequent proceeding, including the judgment, the execution, order of sale, and deed, inust 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. 513, 13 Pac. 830, the court deals with this subject, following the former decision. In the last cited case the aflidavit was held to be void. In Lieberman v. Douglass, 02 Kan. 786, 04 Pac. 5:1, 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 Proceclure 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 ren(lered. 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.) 3.0, 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 judgment 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, was 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 pow'ers are exercised over a class not within its ordinary jurisdiction, and therefore no presumption of jurisdiction would attend the

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judgment of the court. As stated in Lewis y. Error from District Court, Comanche CounLewis, 15 Kan. 181, these provisions with ty; before Justice B. F. Burwell. reference to publication service in divorce Robert Barbe was convicted of crime, and cases may be very inadequate, but they brings error. Affirmed. are worth something; and, whether adequate See 86 Pac. 61. or not, it is the legislative direction, and, as such, must not be disregarded. They are

Ross & Anderson, for plaintiff in error. precautionary measures calculated to guard P. C. Simon, Atty. Gen., and Don C. Smith, against the danger of decreeing a divorce

Asst. Atty. Gen., for the Territory. without the knowledge and presence of both parties. Again, our own court, in the case GARBER, J. The plaintiff in error, jointof Romig v. Gillett, 10 Okl. 186, 62 Pac. SOJ, ly with Charles Barbe, J. Stien, and Roy has spoken upon this subject as follows:

as follows: Barbe, was indicted by a grand jury of Co"Where a party seeks to bring a defendant manche county, charged with the larceny of into court upon service by publication under certain domestic animals. A demurrer to the Code, he must strictly comply with the the indictment being overruled, upon applicaprovisions of the statute, and, unless this is tion, a change of judge was granted, and also done, the judgment will be void for want of

a separate trial for each defendant. On the jurisdiction of the person of the defendant."

24th day of March, 1905, the jury returned a Again, in Rodgers v. Nichols, 15 Okl. 579,

verdict, finding the defendant guilty of steal83 Pac. 923. this court has spoken in a man

ing domestic animals as charged in the inner which we think is decisive of this case.

dictment. A motion for a new trial having From the conclusions which we have reach- been overruled, the defendant was sentenced ed, we think that the district court erred in

to imprisonment in the territorial prison at overruling the motion of the plaintiff in error

Lansing, Kan., for a period of eight years. to vacate the judgment, and for such error

From that judgment, plaintiff in error apthe decision of the court should be reversed.

peals, and asks a reversal thereof upon three All the Justices concurring, except IRWIN,

assignments of error, viz.: First, the demur. J., who tried the case below, not sitting.

rer to the indictment should have been sus. tained ; second, the court was without juris

diction; third, the evidence was insufficient : 19 Okl. 119)

to support the verdict. BARBE v. TERRITORY.

The first two assignments of error upon the (Supreme Court of Oklahoma. Sept. 1, 1907.)

same state of facts having been passed upon

by this court in a very able opinion by Mr. 1. LARCENY-INDICTMENT. In a prosecution for larcepy of domestic

Justice Pancoast in the case of Charles Barbe animals, an indictment which charges that the (one of the persons jointly indicted with the defendants did then and there unlawfully, will, plaintiff in error in this case) v. Territory, fully, and feloniously, by stealth, take, steal, and carry away, without the consent and against

16 Okl. 563, 86 Pac. 61, renders a restatement the will of the true owner." certain personal of those questions raised by the assignment of property. "with the unlawful and felonious in error and conclusions of law thereon at length tent then and there" of the defendants to de- unnecessary at this time. In that case, as in prive the said L. C. Knee thereof, and to convert the same to their own use and benefit." suf

this, it was urged that the indictment did not ficiently charges a felonious intent to convert. charge that the property was taken with the 2. JUDGES -- CHANGE OF JUDGE — POWERS OF felonious intent to convert. The indictment SUBSTITUIED JUDGE.

charged that the defendants, Charles Barbe, Where an application for change of judge J. Stien, Robert Barbe, and Roy Barbe, tben is granted on March 22, 1903, and the clerk of the district court of Comanche county is or

and there being, did then and there unlawfuldered to notify the clerk of the Supreme Court ly, willfully, and feloniously, by stealth, steal, at Guthrie of such change of judge, and where. take, and carry away, without the consent on the same day, at Woodward, Okl., at cham

and against the will of the true owner, two bers, an order is made by the (Chief Justice assigning another judge to "hold the district court

Cows and eight steers and six young cows, in the county of Comanche, * * and to try. | the personal property of L. C. Knee, with the hear, and determine any and all cases and mat

unlawful and felonious intent, then and there, ters that may come before him in said district during the absence”, of the regular presiding of them, the said Charles Barbe, J. Stien, judge therefrom, held, the judge so assigned has Robert Barbe, and Roy Barbe, to deprive the jurisdiction to try, hear, and determine any case said L. C. Knee thereof, and to convert the or matter which may come before him while acting under such order of the Chief Justice.

same to their own use and benefit. In pass3. CRIMINAL LAW.-ACCOMPLICES—EVIDENCE

ing upon the sufficiency of the indictment CORROBORATIOX-SUFFICIENCY-LARCENY.

Justice Pancoast, speaking for the court, said: Evidence of witnesses other than accom "We are of the opinion that the indictment plices examined, and hold to be sufficient to ten!

in this case fills the requirements of the law to connect the defendant with the commission o'

under the rule there enunciated. The unlawthe offense.

[Ed. Note. -For cases in point, see Cent. Dig.. ful and felonious taking, the unlawful and vol. 17, Criminal Law', $ 1128.]

felonious intent to deprive the owner of the (Syllabus by the Court.)

property and to convert the same to the tak

er's use, are allegations which are all con turn a verdict of acquittal. It is claimed tained in this indictment."

that the conviction was secured upon the tesThe second assignment of error in that timony of accomplices, which was not corcase, as in this, challenged the jurisdiction roborated by such other evidence as tended of the Chief Justice to issue an order, while to connect the defendant with the cominisholding court at chambers, at Woodward, sion of the crime; it lieing admitted that Okl., designating Hon. Benjamin F. Burwell, the testiomny of the accomplices was amply Associate Justice of the Supreme Court, and sufficient to support the verdict, if suifipresiding judge of the Third judicial district, ciently corroborated. An examination of the to hold the district court of the county of record reveals, not only the commission of Comanche, of the Seventh judicial district, this crime by the defendant, but ample corand to try, hear, and determine any and all roboration thereof. Dr. L. C. Knee, the cases and matters that might come before owner of the cattle, testified that he saw him in said Seventh district during the ab the defendant and others in a pasture about sence of Ilon. F. E. Gillette, the regular pre five miles southeast of Lawton on the day siding judge, therefrom, for the reason that preceding the night they were stolen, April there had been no time sufficient for the clerk 21th. Mrs. Frances Davis testified that the of the district court to transmit to the clerk defendant and his wife, and other parties, of the Supreme Court at Guthrie a certified who were subsequently convicted of the copy of the order granting a change of judge, stealing of these same cattle, were at her and that the Chief Justice issued the order house on April 24th, and that the defendant, designating a judge without sufficient notice; with other parties, left her house that evenit appearing that the change of judge was ing, and did not return until the next morngranted on March 22, 1905, and that the order ing, at about 7 or 8 o'clock. John Burton issued by the Chief Justice was issued on the testified that he saw the defendant, with same day. In passing upon that question Jus other persons, driving the stolen cattle along tice Pancoast, speaking for the court, said: about sundown in the direction of the ranch "While the statute provides that notice of or big pasture where the defendant kept an order granting a change of judge shall be

his cattle. George M. Rattan testified that transmitted to the clerk of the Supreme Court

he trailed the cattle into the mountains and shall be by him immediately presented and found them among defendant's cattle on to the court, if in session, or, if not, then to April 29th. From this brief statement of the Chief Justice, yet we are of the opinion the substance of the testimony of disinterthat this provision is not the only one that ested witnesses, and from a careful reading may be pursued. The only purpose of this

of the entire record, it clearly appears that act is to give notice to the Supreme Court, if

there was sufficient corroborating evidence in session, or to the Chief Justice, if the court

tending to connect the defendant with the is not in session, that an order for a change crime of which he was convicted and senof judge has been made; but if the court,

tenced, and, when the corroborating evidence if in session, or the Chief Justice, if the

tends to connect the defendant with the comcourt is not in session, receives notice of such mission of the offense, the requirements of order in any other manner, we think the the statute have been fully satisfied. right clearly exists to act upon the notice, if It clearly appearing that the defendant the order for a change of judge has, in fact,

has had a fair and impartial trial, and that been granted. The manner of giving or ac

the evidence is amply sufficient to sustain the quiring notice of the order granting a change verdict, the judgment of the district court of judge is not jurisdictional.

of Comanche county will be affirmed. The remaining assignment of error is that the evidence was insufficient, and that the

BURWELL, J., who presided in the court court should have sustained the motion of the below, not sitting. All the other Justices conplaintiff in error to instruct the jury to re curring, except IRWIN, J., absent.

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(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, $8 142, 143.) (Syllabu's 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.

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.

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

(76 Kan. 271) ATCHISON, T. & S. F. RY. CO. v. McELROY. (Supreme Court of Kansas. July 5, 1907. Re

hearing Denied Oct. 5, 1907.) 1. RAILROADS_LICENSEES ON TRACK-NEGLIGENCE.

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.

[El. Ynte.For cans in point, see Cent. Dig. vol. 41, Railroads, $ 891.)

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