Where a devisee's interest in real estate is attached and service is made upon him by publication only, the devisee's share of proceeds in personal property in the executor's hands, but not attached, cannot be applied upon the judgment.55

DIVISION IV.-ORDER

§ 1784. Attachment order-Form

"The order of attachment shall be directed and delivered to the sheriff. It shall require him to attach the lands, tenements, goods, chattels, stocks, rights, credits, moneys and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable cost of the action not exceeding fifty dollars."

(Caption.)

ORDER OF ATTACHMENT

State of Oklahoma to the Sheriff of

County Greeting:

You are commanded to attach and safely keep the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, moneys, and effects of the defendant,, not exempt by law from being applied to the payment of the claims of the plaintiff, for the sum of or so much thereof as will satisfy said claim and dollars, the probable costs of this action. You will make the return of this order on the

-, A. D. 19

day of

In witness whereof I have hereunto set my hand and the seal of

Under the statute providing that an attachment may issue "at or after the commencement" of an action, the writ may issue after verdict and before final judgment is rendered and recorded.57 Where an attachment is properly issued on filing a sufficient affi

55 Ward v. Benner, 131 P. 609, 89 Kan. 369.

56 Rev. Laws 1910, § 4815.

57 Davis v. Jenkins, 26 P. 459, 46 Kan. 19.

davit and bond, and property is taken thereunder, the lien of attachment is not lost by failure to make proper entries of the issuance of such order of attachment.58

§ 1786. Several orders-To different counties

"Orders of attachment may be issued to the sheriffs of different counties, and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but only such as have been executed shall be taxed in the costs, unless otherwise directed by the court.” 59

Even if lands and tenements of a defendant may not be attached in an action in a county court, that part of an order of attachment in such proceeding which directs the sheriff to levy on the lands and tenements of the defendant is surplusage, and does not affect the validity of the remaining portion of the order, where it directs a seizure of the defendant's personal property, and such command alone is executed.60

An attachment order is not void because the sheriff is not directed to return it in 10 days, but is directed to "make due return of this order, with your proceedings thereon, when fully executed or discharged." 1

§ 1788. Service of process

The court does not acquire jurisdiction to pass absolutely on rights of parties until defendant has been given legal notice, either actual or constructive, to appear and defend.62

58 First Nat. Bank v. Hesser, 77 P. 36, 14 Okl. 115; Rev. Laws 1910, § 5521. 59 Rev. Laws 1910, § 4816.

60 Raymond v. Nix, 49 P. 1110, 5 Okl. 656.

61 Raymond v. Nix, 49 P. 1110, 5 Okl. 656.

62 Davies v. Thompson, 61 Okl. 21, 160 P. 75, L. R. A. 1917B, 395. Testimony of officer executing order of attachment held not to show such failure to comply with Rev. Laws 1910, § 4820, by leaving copy of order, etc., as to render attachment proceeding void. Richardson v. Carr (Okl.) 171 P. 476.

When an action is commenced by filing a petition and an affidavit for attachment, and a summons is issued, and an order of attachment is obtained and levied on land, but no service of summons is had within 60 days from the filing of the petition, the attachment falls; and a deed, though actually made

§ 1789.

By publication-Form of affidavit

A notice by publication, not describing the real estate attached, and failing to state the nature of the judgment sought, is void.a3 But such defect in omitting the description of the attached property is remedied by a subsequent general appearance.**

To support service by publication against a nonresident defendant in attachment proceedings, the affidavit for such service should show that the defendant has property within this state subject to attachment.65

It is not necessary that an ordinary summons be issued before service by publication can be had."

before the 60 days expired, will convey the land free from the lien. Kincaid v. Frog, 31 P. 704, 49 Kan. 766.

Under Code Civ. Proc. § 57, providing that a civil action may be commenced by filing with the clerk of the court a petition, and causing a summons to be issued thereon, an attachment in which the petition was filed and a summons issued and a writ levied was begun, though no personal service was made on defendant, and no service by publication was attempted for 60 days after filing the petition, as Code Civ. Proc. § 20, providing that an attempt to commence an action must be followed by the first publication or service of the summons within 60 days, applies only to the statute of limitations. Wester v. Long, 66 P. 1032, 63 Kan. 876.

63 Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L. R. A. (N. S.) 1084; Rev. Laws 1910, § 4725.

In attachment against a nonresident, under Rev. Laws 1910, § 4723, a publication notice, not describing the land attached, or stating even inferentially the nature of the judgment to be taken, is fatally defective. City Nat. Bank v. Sparks, 50 Okl. 648, 151 P. 225. Failure of an affidavit for publication to allege facts showing the case to be one provided for by Wilson's Rev. & Ann. St. 1903, § 4276 (Rev. Laws 1910, § 4722), renders it insufficient to support service by publication. Id.

In an action by attachment against a nonresident whose land is levied upon, a publication notice which fails to describe the land attached is defective. Cackley v. Smith, 17 P. 156, 38 Kan. 450.

64 Schultz v. Stiner, 157 P. 265, 98 Kan. 45, denying rehearing 155 P. 1073, 97 Kan. 555.

Under Code Civ. Proc. § 57, providing that a civil action may be commenced by filing a petition and causing a summons to be issued thereon, and sections 72 to 75, providing for service by publication, an attachment proceeding is commenced when plaintiff files an affidavit for publication, which is thereafter made good by pursuing the requirements of the statute, or where the regularity of the subsequent proceedings is waived by the entry of the defendant's appearance within 60 days. Raymond v. Nix, 49 P. 1110, 5 Okl. 656.

65 Mortgage Trust Co. of Pennsylvania v. Norris, 54 P. 283, 8 Kan. App. 699.

66 When an action is commenced against a nonresident of this state, by filing a petition, bond for costs, an affidavit for the publication of a summons, a

AFFIDAVIT FOR SERVICE BY PUBLICATION IN ATTACHMENT

(Caption.)

A. B., being duly sworn according to law, says: That he is the attorney for the above named plaintiff. That on the day of, 19, said plaintiff filed in the above entitled court his petition, with an affidavit for attachment against the said defendant. That in said petition plaintiff shows that defendant, C. D., made, executed, and delivered to the plaintiff four (4) notes, dated 19—, each for the sum of ($ -) dollars, paya

ble to the plaintiff two, three, four and five years after date, respectively, without interest, and that said notes are unpaid and are now held and owned by said plaintiff. That defendant, C. D., has property in the city of, county of state of Oklahoma, of the following description, to wit: (Describing same.) That in said affidavit plaintiff shows that defendant is about to convey or otherwise dispose of her property with the fraudulent intent of defrauding or cheating her creditors, or to hinder or delay them in the collection of their debts. That the defendant is not a resident of the state of Oklahoma, and that the plaintiff is unable with due diligence to cause service of summons to be made on said defendant within the state of Oklahoma. That plaintiff has caused summons to issue to the sheriff of county, and that the same. has been returned not found. That plaintiff has made inquiry at every possible source of information for the purpose of locating said defendant, and that affiant as a result of such efforts states that said defendant has been outside of the state of Oklahoma at all times since a time prior to the institution of this suit, and that she has not had since a time prior to the institution of this suit any residence in the state of Oklahoma. That plaintiff at commencement of this action caused the above described property to be attached,

præcipe for a summons by publication and an affidavit for an order of attachment and an order of attachment is issued and levied on land of the nonresident defendant and constructive service of a summons is begun, by causing a publication to be made in the first issue of a newspaper after the petition was filed and attachment issued, it is error to discharge the attachment because an ordinary summons was not issued to the sheriff of the county in which the action was commenced, under Code, § 57, providing that a civil action shall be begun by "causing a summons to be issued." Bannister v. Carroll, 22 P. 1012, 43 Kan. 64.

and that plaintiff wishes to obtain service on said defendant by publication.

"The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons. When issued afterwards, it shall be twenty days after it is issued." 67

"The officer shall return, upon every order of attachment, what he has done under it. The return must show the property attached, and the time it was attached; when garnishees are served, their names, and the time each was served, must be stated. The officer shall also return with the order all undertakings given under it." 68

67 Rev. Laws 1910, § 4817.

68 Rev. Laws 1910, § 4844.

That sheriff's return of order of attachment did not state compliance with Rev. Laws 1910, § 4820, as to leaving copy of order of attachment, did not show want of jurisdiction in attachment proceeding and consequent invalidity of sheriff's deed. Richardson v. Carr (Okl.) 171 P. 476.

The mere omission of a return to an attachment to state in words that a copy was served is an irregularity only, if it otherwise shows an attachment to have been levied. Wagstaff v. Moser, 55 P. 554, o Kan. App. 855. A return to an attachment of real property may describe the property by reference to the inventory and appraisement. Id.

Return upon an order of attachment describing land as northeast and northwest quarters of section 22 in township 7, range 38, was not void for uncertainty. Hodgen v. Roy, 102 Kan. 197, 169 P. 1143.

When the sheriff's return on an order of attachment refers for a description of the property seized to papers in some other case, the attachment creates no lien, since Code Civ. Proc. § 205, requires the return to show the property attached. Harding v. Guaranty Loan & Trust Co. of Kansas City, 43 P. 835, 3 Kan. App. 519.

Where sheriff returned writ of attachment with forthcoming bond with space for stating amount of liability blank, an order permitting amount to be inserted, on ground of an oversight, resisted by signers of bond, did not entitle them to reversal for informality of proceedings. Larimore v. Parker, 101 Kan. 729, 168 P. 859. Where sheriff's return to order of attachment showed a levy, and a return to defendant on giving of forthcoming bond, but omitted to describe the property, an amendment should have been allowed for that purpose. Id.

HON.PL.& PRAC.-106

(1681)