The district court has power to award land as alimony in a divorce proceeding based on constructive notice to the defendant, where the plaintiff alleges sufficient grounds for divorce, and alimony, in the petition, and asks to have such land appropriated as alimony, and where the publication notice contains a particular description of the land sought to be appropriated and the nature of the relief demanded. An action for divorce must be brought in the county where is garnisheed, but he has no funds of the corporation in his hands here, the court obtains no jurisdiction over the corporation or its property in another State on service against it by publication. Wheat v. Railroad Co., 4 Kan. 370. And, where the affidavit for publication does not state directly, inferentially, or in any other way, that the action brought is one of those mentioned in Section 72 of the Civil Code, it is fatally defective, and service by publication cannot be obtained thereon. Harris v. Claflin, 36 Kan. 543, 13 Pac. 830. In Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785, a party sought to rescind a contract for the exchange of real estate by an action properly brought in the county where part of it was situated, against residents of another county, where they were summoned. After appearance of the defendants, the plaintiff, obtaining leave to amend, added another cause of action for damages for breach of warranty as to some of the exchanged lands, thus blending a local with a transitory cause of action; and it was held that the added cause was properly struck out on motion of the defendants; that the plaintiff should be confined to the cause of action which authorized service of summons in another county, and to allow him to do more was to violate the statute relating to service, take an undue advantage of the defendants, and impose upon the court. It may be difficult to reconcile this case with Beebe v. Carter, 54 Kan. 261, 38 Pac. 278, but the latter case is distinguishable from the one now under consideration, for in that the amendment was allowed after a general appearance had been entered by the defendant constructively served, and one of the defendants had been personally served. In the present case, demands only personal in their nature were united with those wherein constructive service is allowable, and then such service was attempted as to the several incongruous claims; but, the validity of the service having been attacked by motion, we cannot disregard the former as mere surplusage, because, on appearance of the defendants below, they could not answer to a part of the petition only, but must respond to everything contained therein; and thus they would be forced to litigate personal claims as a penalty for appearing in this jurisdiction for the purpose of settling rights to property situated here. Zimmerman v. Barnes, 56 Kan. 419, 43 Pac. 764. the plaintiff resides, and when rightfully brought, and alimony is asked as an incident of the divorce, any lands of the defendant brought within the control of the court by proper averments in the petition and notice may be awarded as alimony, although they may lie in a county of the State other than where the action is brought.80 80 Wesner v. O'Brien, 56 Kan. 724, 44 Pac. 1,090; Rhodes V. Rhodes, 11 N. W. (Neb.) 122. It is conceded that constructive notice was sufficient to authorize a divorce of the parties, but it is contended that a decree terminating the marriage relation was the full extent of the jurisdiction and power of the court. The determination of the question depends, to a great extent, upon the statutes of the State; and that the State has full power through its Legislature and courts, to regulate and control the status of its citizens, and to dispose of or to control real property, to whomsoever it may belong, within its limits, will hardly be denied. It is provided that service may be made by publication "in actions to obtain a divorce, where the defendant resides out of the State," and "in actions brought against a nonresident of the State . . hav ing in this State property sought to be taken by any of the provisional remedies or to be appropriated in any way." It is also authorized where the action relates to real or personal property in this State in which a nonresident defendant has or claims an interest, or where the relief demanded consists wholly or partly in excluding him from any interest therein. These provisions, if valid, afford authority to dissolve the marriage relation upon constructive notice, and also to appropriate the real property of the nonresident defendant. In Dillon v. Heller, 39 Kan. 599, 18 Pac. 693, it is held that: "Kansas is supreme except so far as its powers and authority are limited by the Constitution and laws of the United States. And within the Constitution and laws of the United States, the courts of Kansas may have all the jurisdiction over all persons and things within the State which the Constitution and laws of Kansas may give to them, and the mode of obtaining this jurisdiction may be prescribed wholly, entirely and exclusively by the statutes of Kansas. To obtain jurisdiction of anything within the State of Kansas, the statutes of Kansas make service by publication as good as any other kind of service." The same view has been expressed by the Supreme Court of the United States, where it is said: "The State, through its tribunals, may subject property situated within its limits, owned by nonresidents, to the payment of the demands of its own citizens against them, and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens, and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such Where a resident of the State for the purpose of hindering and delaying creditors, conveys real estate to a nonresident of the State, such lands may be subjected to the payment of the debts of the actual owner, and constructive service may be made upon the holder of the legal title residing out of the State.81 It has been held that an infant of whatever age, residing with its mother, who is a widow and resides in another State, will not be presumed to have a guardian residing in this State; and in a suit against such infant for the purpose of foreclosing a mortgage on real estate, situated in this State, it will be sufficient to state in the affidavit for service of notice by publication, "that the said residents of the State of Nebraska, and that service of summons cannot be made upon them in this State. * 1982 are non Sec. 57. The affidavit required for service by publication. Before service can be made by publication, an affidavit must be filed, stating that the plaintiff, with due diligence, is unable to make service of the 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." 83 by publication. It was, therefore, competent for the Legislature to provide for the granting of a divorce upon constructive service, and, as alimony is an incident of divorce, it may be awarded in the same proceeding, if it is within the power of the court. Wesner v. O'Brien, 56 Kan. 724, 44 Pac. 1,090. 81 Keene v. Sellenback, 18 N. W. (Neb.) 75. 82 Davis v. Huston, 16 N. W. (Neb.) 820. 83 Snyder, 5,613; Wilson, 4,277; Kansas, 4,507 (1901), identical; Nebraska, 1,079 (1907), identical. It must be kept in mind that compliance with the statute as to ground for service by publication, the affidavit therefor, and the publication of the notice, altogether are required to give the court power to enter judgment. If any of these requirements are wanting the court will acquire no jurisdiction. Where the publication alone is relied on, and jurisdiction is sought to be obtained of a defendant in an action by publication of service, 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.84 Where the affidavit is not filed the court has no jurisdiction. Osborne v. Schlechenmaier, 68 Kan. 421, 75 Pac. 474. A judgment rendered against a defendant by default upon constructive service by publication, in an action for goods sold and delivered, there being no personal service and no appearance of the defendant, is absolutely void, where, at the time of the commencement of such action and the making of such publication, the defendant was a resident of the territory, and by due diligence, summons could have been personally served upon him. Hockaday v. Jones, 8 Okla. 156, 56 Pac. 1,054. If there is a total want of evidence upon a vital point in the affidavit for publication, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable; and where the affidavit for publication does not state directly, inferentially, or in any other way, that the action brought is one of those mentioned in Section 72 of the Civil Code, the affidavit is fatally defective, and service by publication cannot be obtained thereon. Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Shields v. Miller, 9 Kan. 390; but see Dietrich v. Lang, 11 Kan. 636; Grouch v. Martin, 27 Pac. (Kan.) 985. In an affidavit for publication, if there is a total want of evidence upon a vital point, the court will acquire no jurisdiction by publication of the notice; but where there is not an entire omission to state a material fact, or it is inferentially or insufficiently set forth, the proceedings are merely voidable. Britton v. Larson, 37 N. W. 681. An affidavit containing no venue of the action, nor the name of the officer taking it, is void. Albers v. Kozeluh, 97 N. W. (Neb.) 046. 84 Cordray v. Cordray, 19 Okla. 36, 91 Pac. 781. 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 allegations of the affidavit must be direct and must set forth the facts required by statute. It is not sufficient 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 says 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 code. 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 allegations 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 |