for the attorney to verify statutory grounds upon information and belief.85 Again, where publication service is relied on solely, and it is alleged in the affidavit therefor, that, with the exercise of due diligence the plaintiff is unable to procure the service of summons upon the defendant within the State, the facts necessary to show that due diligence was used to obtain personal service should be stated, and where judgment is rendered against a foreign corporation without such requirements being complied with, it is void.s Sec. 58. Application to set aside constructive service and proceedings under it not a collateral attack, when. The statute requiring an affidavit to be filed showing the statutory grounds before a party may proceed to make service by publication, must be complied with. It is not sufficient to aver in the affidavit that the case is one within the provisions where constructive service is permitted, for this is but a conclusion of law. Such statement is wholly Galpin v. Page, 18 Wall. (U. S.) 350, 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 of protection of the judgment or decree." Cordray v. Cordray, 19 Okla. 36, 91 Pac. 781. 85 Romig v. Gilette, 10 Okla. 186, 62 Pac. 805, 187 S. W. 111. 86 Nicoll v. Midland, 21 Okla. 591, 96 Pac. 744; McDonald v. Cooper, 32 Fed. Rep. 745; Coalton v. Coalton, 85 N. Y. 313; McCracken v. Flanagan, 127 N. Y. 493, 28 N. E. 385, 24 Am. St. 481; Richardson v. Richardson, 26 Cal. 149; Braley v. Seaman, 30 Cal. 610; Kahn v. Mahai, 115 Cal. 689, 47 Pac. 678; Little v. Chambers, 27 Ia. 522; Thompson v. Circuit, 54 Mich. 236, 19 N. W. 967; Alderson v. Marshall, 7 Mont. 288, 16 Pac. 576. An affidavit for service by publication, made by the authorized agent of the plaintiff, which is otherwise correct, but which closes with the words, "to the best of his knowledge, information and belief," and thereby qualifies the prior declarations contained therein, is defective and insufficient, but not void; and the plaintiff, after judgment, is entitled, with leave of the trial court, to make the affidavit positive and sufficient by amendment. Harrison v. Beard, 30 Kan. 532, 2 Pac. 632. insufficient and any attempted service by publication under such affidavit will render all subsequent proceedings thereunder a nullity. The law in respect to the statements is explicit and peremptory; and there is no way of evading it. Where the affidavit for publication is wholly insufficient in law, and application is made to set aside the constructive service and subsequent proceedings based thereon in the same case and considered without objection, it was held that such application and proceedings constituted a direct and not a collateral attack upon the constructive service and subsequent proceedings. 87 87 Lieberman v. Douglass, 62 Kan. 786, 64 Pac. 590. 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 such 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. This defect in the affidavit, we think, is fatal. As was said by this court in the case of Shields v. Miller, 9 Kan. 390, the law is explicit and peremptory and there is no way of evading it. The affidavit is the foundation upon which jurisdiction is obtained. The plaintiff has no authority or power to obtain service by publication until after he has filed the proper affidavit. Without the affidavit, the attempted service is a nullity. And without a valid service every subsequent proceeding, including the judgment, the execution or order of sale, the sale and the deed, must necessarily be void. The Court of Appeals in its consideration of this case arrived at the same conclusion, but proceeded with a further consideration of the case upon the assumption that the attack made upon the service was in the nature of a collateral and not a direct attack. With this conclusion we do not agree. The final judgment in the case was rendered on the 3d day of January, 1895. This judgment was rendered in favor of the defendant, Douglass. It was expressly based upon this constructive service. The motion of Lieberman to set aside this service and the proceedings based thereon was filed in this case on the 21st day of February, 1895, at the same term of court at which this judgment was rendered. At the hearing of this motion Douglass appeared, and, without objection, went to trial upon the merits of the motion. It is clear that such proceeding constitutes a direct and not a collateral attack upon the constructive service and subsequent proceedings based thereon, and whether such proceedings and service were absolutely void or only voidable is not material. Commissioners v. Lawrence, 29 Kan. 158. In People v. Green, 74 Cal. 400, 16 Pac. 197, the court held: "A motion to set aside a judgment is It has been held that where an affidavit has been filed, notice given by publication and approved by the court as required by statute, jurisdiction is conferred upon the court to hear and determine the action in which such service was had, and a judgment rendered therein is valid and unimpeachable unless assailed for cause within the time prescribed by statute, even though the affidavit was true, the defendant was ignorant of the pendency of the action, and made no appearance therein. 88 The court will, on motion filed in due time, set aside a service by publication, based on an affidavit which contains no reference to the defendant attempted to be served.89 Sec. 59. The affidavit for service by publication may be corrected by amendment, when. It has been held that where an affidavit for publication either inferentially or insufficiently sets forth a material fact which should be expressly stated, the affidavit being otherwise good, will be held to be merely voidable; and, if the fact inferentially or insufficiently stated, was in existence at the time of the commencement of the action, the trial court, even after judgment, may allow the affidavit to be amended concerning the matters so inferentially or insufficiently stated, a direct and not a collateral attack thereon." In People v. Mullan, 65 Cal. 396, 4 Pac. 348, the Supreme Court of California held: "A judg ment following a service by summons purporting to be by publication, but which was made without affidavit or order, is void; and а motion to set aside the judgment is a direct and not a collateral attack." Mr. Black, in his work on Judg ments, Sec. 324, says: "It is, in general, good ground for setting aside a judgment that ther was no service of process upon the defendant, or that the service was materially irregular and defective, provided there has been no waiver of such defects by appearance ог otherwise." Lieberman v. Douglass, 62 Kan. 786, 64 Pac. 590; see, also, Simcock v. Bank, 14 Kan. 529; Leavenworth v. Stone, 60 Kan. 57, 55 Pac. 346. 88 Davis v. Vinson, 76 Kan. 27, 90 Pac. 766; see, also, Ogden v. Walters, 12 Kan. 282; Larimer v. Knoyle, 43 Kan. 346, 23 Pac. 487; Hammond v. Davenport, 16 O. S. 177. 89 Rawson v. Sherwood, 59 Kan. 776, 53 Pac. 69. and the affidavit so amended will relate back to the commencement of the action.90 But, in order that the affidavit may be amended, the facts authorizing the amendment must be stated so as to make the affidavit come within the terms of the statute. The courts have qualified the right to amend by holding that affidavits for service by publication are amendable as to some defects. The affidavit that fails to state directly, or inferentially, or in any other way, any matters required by the statute to be stated therein, is voidable, and constructive service by publication cannot be obtained thereunder. But where the jurisdictional facts necessary to warrant service by publication were in existence at the time of the commencement of the action, and the affidavit for publication is 90 Long v. Fife, 45 Kan. 271, 25 Pac. 594; Raymond v. Nix, 5 Okla. 656, 49 Pac. 1,110; Reister v. Laud, 14 Okla. 34, 76 Pac. 156; Weaver v. Lockwood, 2 Kan. App. 62, 43 Pac. 311; Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Pierce v. Butters, 21 Kan. 124; Wilkins v. Tourtellott, 28 Kan. 833. The affidavit for publication should have stated that the case commenced in the district court was one of those mentioned in Section 72 of the Civil Code. This rule is, if there is a total want of evidence upon a vital point in the affidavit, 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. Harris v. Claflin, 36 Kan. 543, 13 Pac. 830. The affidavit for publication stated that Mrs. M. A. Hays, the defendant, was a nonresident of the State of Kansas; that service of summons could not 91 be made upon her within the State; that the action was brought for the purpose of recovering from her the sum of one hundred dollars due to the plaintiff; and also set forth a full description of the real estate owned by her in the city of Wyandotte (now Kansas City). This was the property that was attached, and which was subsequently sold to pay the judgment. The fair inference from the affidavit is that the real estate described was sought to be taken or appropriated for the debt owing by Mrs. Hays; at least, we do not think the omission in the affidavit so vital, in view of what the affidavit did contain, as to render the proceedings void. Long v. Fife, 45 Kan. 271, 25 Pac. 595. 91 Ballew v. Young, 24 Okla. 182, 103 Pac. 623; Leavenworth V. Stone, 60 Kan. 57, 55 Pac. 346; Garrett v. Struble, 57 Kan. 508, 46 Pac. 943; Long v. Fife, 45 Kan. 271, 25 Pac. 594, 23 Am. St. Rep. 274. defective only in that it states inferentially a matter required to be alleged therein, it is amendable, even after judgment, but where there is a total want of averment in the affidavit of some material fact, it is void.92 Sec. 60. Service by publication-When and how made. The publication must be made three consecutive weeks in some newspaper printed in the county where the petition is filed, if there be any printed in such county; and if there be not, in some newspaper printed in this State, of general circulation in that county. It must state the court in which the petition is filed, the names of the parties, and must notify the defendants thus to be served that he, or they, have been sued and must answer the petition filed by the plaintiff on or before a time to be stated (which must not be less than forty-one days from the date of the first publication), or the petition will be taken as true, and judgment, the nature of which must be stated, will be rendered accordingly.93 As the affidavit for service by publication must be according to the terms of the statute, to give the court jurisdiction for constructive service of the defendant, so the notice to be published must be within the terms of the statute in order to give the court power to order a sale, or enter any decree in the case against the defendant to be served by publication.94 92 Ballew v. Young, 24 Okla. 182, 103 Pac. 623; Foreman v. Carter, 9 Kan. 674; Pierce v. Butters, 21 Kan. 124; Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Wilkins v. Tourtellott, 28 Kan. 589. 93 Snyder, 5,614; Wilson, 4,278; Kansas, 4,508 (1901), identical; Nebraska, 1,080 (1907), identical. 94 Cordray v. Cordray, 19 Okla. 36, 91 Pac. 781. In an action for attachment against a nonresident defendant, whose land has been levied upon, a publication notice which fails to describe the land attached, and fails to state inferentially, or in any other manner, the nature of the judgment which will be taken, is fatally defective. Ballew v. Young, 24 Okla. 182, 103 Pac. 624. In obtaining service by publication, if there is a total failure to state in the notice any material matter required by the statute, the service is void and subject to collateral attack; but where there is not such an entire omission |