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Neither courts, nor clerks, have any power or discretion with respect to the time in which the notice by publication shall be published, and what it shall contain, nor on what date the defendant shall be notified that he is required to answer."

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The publication of the notice for the times required by the statute, and on additional dates, will not invalidate the notice. The notice for publication need not state the names of any of the defendants in the case except the one upon whom constructive service is being made; and the notice is held to be sufficient where it advises such defendant of the nature and character of the action brought against him, and of his interests which are sought to be affected by the action 97

It was held that service of summons by publication upon Emma H. Morris is not a good service on Emma H. Durham, a married woman, who had borne the name of Durham for nearly twenty years, though her maiden name was Emma H. Morris; and such an attempted service in an action of partition, under which it is attempted to sell her interest in lands belonging to the estate of her deceased father, should be set aside on her motion.98

of a material matter from the notice, but it is inferentially or insufficiently set forth therein, the service is merely voidable, and can be successfully attacked only on a direct proceeding. In a collateral attack upon a judgment of foreclosure, where the record discloses that an affidavit for publication for the nonresident defendant assailing said judgment was made, and, because destroyed, was not produced, but which was approved by the court, which upon it rendered said decree of foreclosure, as all presumptions are in favor of the validity of the orders and proceedings

of a court of general jurisdiction, said notice will be presumed to be sufficient under the statute until the contrary is shown. Core v. Smith, 23 Okla. 909, 102 Pac. 114. 95 Calkins v. Miller, 75 N. W. (Neb.) 1,108.

96 Taylor v. Coots, 48 N. W. (Neb.) 64; Fouts v. Mann, 18 N. W. (Neb.) 64. The time for the publication is counted by including the first day and excluding the last. Beckwith v. Douglass, 25 Kan. 159. 97 Head v. Daniels, 38 Kan. 1, 15 Pac. 911.

98 Morris v. Tracey, 58 Kan. 137, 48 Pac. 571.

Sec. 61. Service by publication complete, when-Proof of publication.

Service by publication is complete when it has been made in the manner and for the time prescribed in the statute set forth in the preceding section; and such service must be proved by the affidavit of the printer; or his foreman or principal clerk, or other person knowing the same. No judgment by default can be entered on such service until proof thereof be made, and approved by the court, and filed."

Sec. 62. The affidavit in proof of publication of notice may be amended.

If service has been made by publication, and the affidavit filed by the printer in proof thereof, does not show that the notice was printed the required number of times, the affidavit may be amended so as to speak the truth. If the judgment on such notice is assailed on account of such insufficient publication, the court may examine the copies of the newspaper in which the same was printed, and receive the evidence of the publishers, and other parties, to prove that the publication was had for a sufficient length of time to comply with the provisions of the statute.1

Sec. 63. When personal service of summons may be made out of the State.

In all cases where service may be made by publication, personal service of summons may be made out of the State by the sheriff of the county in which such service may be made. Such summons must be issued by the clerk under the seal of the court, and directed to the defendant, or defendants, to be served, and must notify him or them that he,

99 Snyder, 5,615; Wilson, 4,279; Kansas, 4,509 (1901), identical; Nebraska, 1,081 (1907), similar; Taylor v. Coots, 48 N. W. (Neb.) 964; Britton v. Larson, 37 N. W. (Neb.) 681.

1 Robinson v. Hall, 33 Kan. 139, 5 Pac. 763; Hackett v. Lathrop, 36 Kan. 661, 14 Pac. 220; Williams v. Morehead, 33 Kan. 609, 7 Pac. 226; Hammerslough v. Hackett, 30 Kan 57, 1 Pac. 41.

or they, have been sued by the plaintiff, or plaintiffs, naming him or them, and requiring him or them to answer the petition filed by the plaintiff, or plaintiffs, in the clerk's office of the court, which must be named, within sixty days from the day of service, or such petition will be taken as true and judgment rendered accordingly. Such service may be proved by the affidavit of the person making the same, before a clerk of a court of record, or other officer holding the seal thereof, or before some commissioner appointed by the governor of this State, under an act providing for the appointment of commissioners to take depositions, etc.: Provided, that such service when made and proved as aforesaid, shall have the same force and effect as service obtained by publication, and no other or greater force or effect.2

A personal service of a summons may be made outside of the State, but an affidavit must be filed in the case, stating that the plaintiff, with due diligence is unable to make service on the defendant to be served, and that the case is one of those in which summons may be had by publication.3

The statute authorizes the service of summons to be made by the sheriff, and his deputy may not make the service, or any other person acting as substitute for the sheriff. But the service is a nullity if no proof is made by the affidavit required by the statute."

No copy of the petition is required to be served with the summons; ' under section one, chapter thirteen of the laws of eighteen hundred and seventy-one. A nonresident of the

2 Snyder, 5,616; Wilson, 4,280; Kansas, 4,510 (1901), identical; Nebraska, 1,082 (1907), similar. A judgment rendered in an action on service by publication, or personal service outside of the State, where there had been no affidavit for publication filed, is void, and will be set aside upon proper and timely application by the defendant. Os

borne v. Schlechenmaier, 68 Kan. 421, 75 Pac. 474.

3 Adams v. Baldwin, 49 Kan. 781, 31 Pac. 681; see, also, Rowe v. Griffith, 68 N. W. (Neb.) 20.

4 Kincaid v. Froy, 49 Kan. 766, 31 Pac. 704.

5 Flint v. Noyes, 27 Kan. 351. • Boden v. Maier, 98 N. W. (Neb.) 701.

7 Case v. Barthlow, 21 Kan. 223.

State may waive summons by the indorsement of his name on the back thereof.

Sec. 64. Judgment on service by publication may be opened up, how-Procedure as to-Good faith purchasers.

A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before a judgment or order can be opened, the applicant is required to give notice to the adverse party of his intention to make such an application, and is required to file a full answer to the petition and pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action, he had no actual notice thereof, in time to appear in court and make his defense; but the title of any property, the subject of the judgment or order sought to be opened, which, by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they effect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of the application to open the judgment or order, as provided by this section, will be allowed to present counter-affidavits to show that during the pendency of the action, the applicant had notice thereof in time to appear in court and make his defense."

8 Chenney v. Harding, 32 N. W. (Neb.) 64.

Snyder, 5,617; Wilson, 4,281; Kansas, 4,511 (1901), identical; Brown v. Massey, 13 Okla. 670, 76 Pac. 266; Bridge v. Street, 9 Okla. 422, 60 Pac. 221; Provins v. Love, 6 Okla. 94, 50 Pac. 581; Williams v. Board, 74 Kan. 693, 88 Pac. 70; McKee v. Covalt, 71 Kan. 772, 81 Pac. 475; Rendell v. Barker, 67

Kan. 774, 74 Pac. 240; Lockey v.
Wilson, 63 Kan. 881, 64 Pac. 978;
Hale v. Hoagland, 62 Kan. 57, 61
Pac. 314; Townsend v. Burr, 9 Kan.
App. 810, 60 Pac. 477; Atchison v.
Means, 61 Kan. 857, 58 Pac. 989;
Quinton v. Derein, 59 Kan. 772, 51
Pac. 898; Kelly v. McBlain, 6 Kan.
App. 523, 50 Pac. 963; Durham v.
Moore, 48 Kan. 135, 29 Pac. 472.

It was held by Judge Brewer of the Supreme Court of Kansas, that when a nonresident seeks to open up a judgment and be let in to defend under the provisions of the statute in question, three things are imperatively required by the express terms of the statute:

(a) That the applicant give notice.

(b) That he file a full answer, and, if required by the court, pay all costs.

(c) That he make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof, in time to appear in court and make his defense.

Each and all of the foregoing should be done and performed within the three years after the date of the judgment.10

Sec. 65. Service by publication on unknown heirs.

In actions where it is necessary to make the heirs or devisees of any deceased person defendants, and it is made to appear by the affidavit of the plaintiff, annexed to his petition, that the names of such heirs, or devisees, or any of them, and their residences are unknown to plaintiff, proceedings may be had against such unknown heirs or devisees, without naming them. In such actions service may be had upon such defendants by publication, and the notice is required to be published as in other cases of service by publication.11

Sec. 66. Procedure where part only of the defendants are served.

Where the action is against two or more defendants, and one or more have been served, but not all of them, the plaintiff may proceed as follows: First, if the action be against defendants jointly indebted on contract, he may

10 Albright v. Warkentin, 31 Kan. 442, 2 Pac. 614; Flint v. Dunlavey, 37 Kan. 332, 15 Pac. 208.

11 Snyder, 5,618; Act of March 4,

1905.

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