#### GOTTLIEB W. KELM, Respondent, v. C. G. LOILAND et al. WILLHELM VORWERK, Appellant.

(228 N. W. 420.)

*20Opinion filed December 24, 1929.

Rehearing denied January 6, 1930.

Nestos, Herigstad, *& Stenersen,*for appellant.

*L. J.Pdlda, Jr., G. TS. Brace*and *Robert W. Balda,*for respondent.

*21BubKE, Ch. J.

This is an action in equity to set aside as null and void a sheriff’s deed to certain lands in Mountrail county, issued on ^sheriff’s certificate of sale under an attachment for the possession of said lands, for quieting title in the plaintiff, and to enjoin the defendants from enforcing judgment, and for such other and further relief as might be just and equitable.

The complaint alleges that the plaintiff, a resident of Lodi, California, since 1924, is the owner of the S. E. J sec. 9, twp. 151, r. 90, in Mountrail county; that returning to Mountrail county in June, 192Y, one Willhelm Vorwerk claimed to be the owner of said land under a sheriff’s deed issued on an execution certificate of sale; that C. G. Loi-land and Raymond Bray had brought an action against the plaintiff in the district court of Mountrail county in which C. G. Loiland was plaintiff for the recovery of the sum of $25 with interest from September 1, 1923, at the rate of 6 per cent and for costs; that the said C. G. Loiland and Raymond Bray had caused to be filed in the office of the *22clerk of said district court on the 16th day of January 1926, a summons, complaint, affidavit and undertaking for an attachment, and that said defendants, O. G. Loiland and Raymond Bray, did on the 16th day of January 1926, have issued a warrant of attachment and a levy was made upon said land thereunder; that the matters stated as a cause of action in the complaint are false and known to be false by the defendants, Loiland and Bray, at the time of filing said complaint and were made in the furtherance of a conspiracy between Loiland and Bray to defraud the plaintiff of said property; that the plaintiff was not indebted at said time to the said Bray, or the said Loiland, in any sum whatever; that the warrant of attachment was void as it did not comply with § 7542, Comp. Laws 1913; that complaint stated a demand for the sum of $25 with interest thereon from and after September 21, 1923, at the rate of 6 per cent, and the warrant of attachment states the plaintiffs demand to be for the sum of $25 with interest thereon; that the sheriff did not file proper notice of levy in the office of the register of deeds of Mountrail county, the amount stated in the warrant for the sum of $25 with interest thereon, and the amount stated in the notice of attachment filed is the sum of $25; that the notice was not served upon the person in the actual possession of the land, as required by § 7549, Comp. Laws 1913; that on the 22d day of January, 1926, copies of the summons, complaint, affidavit for attachment and warrant of attachment was delivered to the plaintiff at Lodi in the state of California, and no proper affidavit for publication of summons was ever made as required by § 7428, Comp. Laws 1913; that the affidavit filed in the office of the clerk of said district court on the 22d of January 1926, was wholly insufficient, that it does not state, nor does complaint show any of the matters required by subdivision one, two or three of the first part of said § 7428, Comp. Laws 1913, nor of subdivisions one, two, three or five of the second part of said section; that the affidavit is as follows, to wit:

> “O. B. Herigstad, being first duly sworn, on oath deposes and says that he is one of the attorneys for the plaintiff in the above entitled action and makes this affidavit on his behalf; that in the above entitled action the sheriff of Mountrail county, North Dakota, on the 16th day of January, 1926, attached certain real property of the defendant, ly*23ing and being in tbe said county and state; tbat personal service of tbe summons in tbis action cannot be bad upon tbe defendant witbin tbe state of North Dakota; tbat tbe defendant’s residence and postoffice address is Lodi, California; tbat tbis affidavit is made for tbe purpose of securing service upon tbe defendant by publication.”

Tbe affidavit was filed in tbe office of tbe clerk of court on tbe 22d day of January, 1926, and therefore, it appears from said judgment roll, tbat tbe affidavit of publication was not filed in tbe office before tbe said attempted service upon plaintiff at Lodi, California; tbat no proof of default of tbe defendant was made or filed; tbat tbe affidavit of default states tbat no answer, demurrer, or other appearance whatsoever bad been made or served upon tbe plaintiff, and does not state tbat no answer or demurrer bad been served upon said plaintiff’s attorneys; tbat tbe plaintiff who was tbe defendant in said action was not a resident of tbe state, and tbe judgment roll in said action does not show proof of plaintiff’s claim made as a basis for tbe judgment as required by subdivision 3 of § 7600, Comp. Laws 1913, and said judgment roll does not show affirmatively tbat the court required the plaintiff or bis agent to be examined on oath respecting any payments tbat bad been made to tbe plaintiff; tbat at tbe time of tbe sale of said property it was of tbe value of $4,000, and was encumbered to tbe extent of about $1,500, and plaintiff’s equity in said property was of tbe value of $2,-500; tbat said property sold for $86.50 a sum totally inadequate for the conveyance. To tbis complaint there was a demurrer which was overruled and from tbe order overruling tbe demurrer tbe defendant, Willhelm Vorwerk, appeals.

There is no variance between tbe complaint, tbe warrant and tbe notice of levy in tbe former action. Each states tbe amount of tbe plaintiff’s claim in tbat action to be $25. Tbe complaint further alleges, “and interest at 6 per cent” from a certain date, the warrant states, and interest thereon, and tbe notice of levy'does not mention interest.

Dnder § 6072 Supplement to Comp. Laws 1913, “interest for any legal indebtedness is 6 per cent, when no rate is specified.” Tbe plaintiff claims only tbe 6 per cent, tbe legal interest, in bis complaint and tbis be would be entitled to as a matter of law.

Tbe affidavit for publication of summons does not allege tbat tbe de*24fendant has property within this state or debts owing to him from residents thereof, bnt it does allege, that the sheriff of Mountrail county, North Dakota’, on the 16th day of January, 1926, attached certain real property of the defendant, lying and being in the said county and state. There is a direct statement that the property that was levied upon by the sheriff at that time, viz., the 16th day of January, 1926, was certain real property of the defendant lying and being in the said county and state.

In the case of Hemmi v. Grover, 18 N. D. 578, 120 N. W. 561, the court said: “The complaint alleges, in substance, that on May 2, 1907, the defendant, through her duly authorized agent, entered into a contract to sell and transfer, by deed of conveyance certain real property therein described and located in Stutsman county, North Dakota, and we think it may fairly be presumed from such fact, when not denied, that defendant was the owner of such real property.”

The allegation in the affidavit in the case at bar alleges, that certain real property of the defendant in the county and state had been attached in that action, and such statement is sufficient. It is further claimed that the affidavit is insufficient because it does not allege that the defendant is not a resident of the state, as required by subdivision one of § 7428, Comp. Laws 1913. The affidavit does allege that the defendant is a resident of Lodi, California, and where the residence of the defendant is known and stated in the affidavit, the statute does not require the statement in the affidavit that the defendant is not a resident of the state of North Dakota.

The statute provides that, “service of summons . . . may be made on defendant by publication upon filing a verified complaint with the clerk of the district court . . . and also filing an affidavit stating the place of defendant’s residence,' if known to affiant, and if not known stating that fact, and further stating [that is if the residence is not known, the affidavit must so state, and if it is not known it must further state] that the defendant is not a resident of the state.” This subdivision applies only when the residence of the defendant is unknown. When it is known, it is sufficient to state the place of residence, as was done in the case at bar. The affidavit was sufficient as a basis for service by publication.

*25It is tbe contention of tbe appellant -that while tbe judgment roll shows that tbe papers were served upon the defendant tbe same day that they were filed in tbe office of tbe clérk of court in Mountrail county, that there is a presumption of law that tbe papers were filed before tbe service was made. On tbe other band, the respondent contends, that in an attachment proceeding a judgment roll must affirmatively show that tbe court bad jurisdiction to enter judgment, and that since it shows that tbe service and tbe filing were on tbe same day it does not appear affirmatively that tbe pleadings and affidavit were filed before tbe service.

Tbe judgment roll in tbe judgment attacked does not show affirmatively, that tbe affidavit for publication of summons was filed in tbe office of tbe clerk of tbe district court of Mountrail county, before tbe service of tbe pleadings on tbe defendant in Lodi, California.

On tbe other band, it does not show, that it was not served on tbe defendant before such filing, it simply shows, that tbe filing and tbe service was made on tbe same day, without showing which was prior. It may have been legally served or it may not have been legally served. If tbe service was made at Lodi, California, before tbe affidavit for publication was filed in tbe office in tbe clerk of court in Mountrail county, tbe service would be invalid and tbe court would have no jurisdiction, but tbe service of tbe summons before tbe filing of the affidavit of service by publication is a question of fact to be alleged by tbe plaintiff and proved at tbe trial, and since it is not alleged, tbe allegation is vulnerable to demurrer.

Tbe alleged defect in tbe affidavit of no answer, and tbe lack of evidence in tbe judgment roll showing- proof of plaintiff’s claim may, be considered together. It is true that tbe statute, § 7422, Comp. Laws 1913, providing a form for tbe summons, does say that tbe defendant is to serve a copy of bis answer upon bis subscriber, who is usually tbe plaintiff’s attorney,' but may be signed by tbe plaintiff.

Section 7421, Comp. Laws 1913, provides that tbe summons shall be subscribed by tbe plaintiff or bis attorney. In that action it might have been signed by tbe plaintiff, and as it is not in tbe record in this case, we cannot say that it is invalid.

Section 7600, Comp. Laws 1913, provides: “Judgment may be had *26if tbe defendant fails to answer tbe complaint.” Tbe specific objection is tbat no proof of default was made or filed, tbat tbe affidavit of default states tbat no answer, demurrer or other appearance whatsoever, bad been made or served upon tbe plaintiff and does not state tbat no answer or demurrer bad been served upon tbe plaintiff or plaintiff’s attorneys. Tbe law does not require, or state what the proof shall be, but tbat if tbe defendant fails to answer tbe complaint, tbe plaintiff may file with tbe clerk, proof of service of tbe summons and complaint and tbat no answer or demurrer had been received and subdivision three provides tbat, “when tbe .service of summons was by publication, tbe plaintiff may in like manner apply for a judgment.” Tbat is, be may show tbat tbe summons was served by publication, or tbat tbe affidavit was filed and tbe summons served personally on tbe defendant without tbe state, and tbe court must thereupon require proof to be made of tbe demand mentioned in tbe complaint; and if defendant is not a resident must require tbe plaintiff or bis agent to be examined on oath respecting any payment tbat bad been made to tbe plaintiff, or to anyone for bis use or account.

It is the contention of tbe plaintiff tbat it must appear affirmatively in tbe record that tbe court required tbe plaintiff or bis agent to testify as to tbe demands of tbe plaintiff. It will be observed tbat tbe statute does not require this to be shown in tbe record, nor does it say what tbe proof of default shall consist of, and while it is necessary for tbe plaintiff to offer proof showing tbe default, and proof supporting bis demand, if tbe record is silent on tbe matter of proof, it will be presumed tbat tbe court beard and considered tbe necessary evidence to enable it to give judgment.

In tbe case of Cole v. Custer County Agri. & M. Stock Asso. 3 S. D. 272, 52 N. W. 1086, tbe court said: “When no answer is filed nor issue of fact tried, tbe court is not required to find facts or state its conclusions of law before rendering judgment. This court will presume, in tbe absence of proof in tbe record to tbe contrary, tbat tbe court beard and considered tbe necessary evidence to enable it to give judgment.”

We are of tbe opinion, tbat tbe facts alleged in the complaint in this case are not sufficient to sustain a cause of action and tbe order is re*27-versed without prejudice to the plaintiff’s right to amend his complaint if it can be amended. It is so ordered.

BiRdzell, Nuessle, Buhe, and OheistiaNsoN, JJ., concur.

On Petition for Behearing.

Bueke, Oh. J.

Respondent filed a petition for a rehearing in which he strenuously insists that we overlooked certain decisions cited in his brief on appeal. The decisions are not mentioned in the opinion .for the reason that they are not in point.

In the case of Hughes v. Fargo Loan Agency, 46 N. D. 26, 178 N. W. 993, the affidavit for publication of summons was insufficient, for the reason that the statement that the defendants were not residents of the state was sworn to on information and belief, and did not state their place of residence or that it was unknown to affiant.

In the case at bar the affidavit states that the defendant’s postoffice address and place of residence is Lodi, California, and sworn to poffitive!y-

In Atwood v. Tucker (Atwood v. Roan) 26 N. D. 622, 51 L.R.A.(N.S.) 597, 145 N. W. 587, the affidavit was held insufficient, for the reason, that it stated only, “That the last known postoffice address of the . . . defendant ... is unknown.” It did not state the’ place of residence of the defendant, or that it was unknown to affiant, as the statute requires. The affidavit in the instant case gives both residence and postoffice address.

In Jablonski v. Piesik, 30 N. D. 543, 153 N. W. 274, the affidavit alleged, “That the whereabouts of the defendant in Canada is unknown to affiant, . . . that the postoffice address of said defendant is unknown to affiant.” It does not state “the place of residence of the defendant if known, and if not known stating that fact.” It was invalid for the further reason that the first publication of the summons was made before the affidavit was filed.

In Roberts v. Enderlin Invest. Co. 21 N. D. 594, 132 N. W. 145, the sheriff’s return, required by subdivision 3 of § 7428, Comp. Laws 1913, to be filed with the affidavit, was not filed until thirteen days after the filing of the affidavit, and after the summons had been twice published.

*28In Dallas v. Luster, 27 N. D. 453, 147 N. W. 95, the court said: “No attempt was made even upon information and belief, to show that the plaintiff had no knowledge of the defendant’s place of residence or address.” The provision of § 6840, Eev. Code’s 1905, relating to service by publication, were, in short ignored.

In Krumenacker v. Andis, 38 N. D. 500, 165 N. W. 524, the affidavit alleged that the wherabouts of the defendant are unknown instead of alleging that the place of residence of the defendant was unknown and it was held insufficient as the word whereabouts is not synonymous with residence.

Despondent quotes from Johnson v. Engelhard, 45 N. D. 11, 116 N. W. 134, as follows: “Under this section, each and every step required to be taken, if the summons were to be published, must also be taken to the point of publication before the personal service mentioned, is permissible. Unless all of such steps are taken, the personal service thus authorized, does not become equivalent nor have the same force and effect as the publication of the summons and the mailing of the summons and complaint in the manner provided for service by publication.” '

Despondent then argues: “That the foregoing language means, that before personal service can be made, the record should clearly show that all steps required by the statute had been taken and that the affidavit was on file before service was made in California.”

In each of the cases cited the record showed a void judgment. In the instant case the complaint alleges that the affidavit was filed on the same day that the service of the summons and complaint were served upon the defendant in Lodi, California. If the summons and complaint were served before the filing of the affidavit the judgment is void. If the affidavit was filed first, the service is good. The plaintiff in this case is attacking a judgment of a court of record and asking to have it set aside and declared void in a collateral proceeding. The rule in such case is stated in 1 Freeman on Judgment, 819, § 383, as follows to wit.:

> “The rule is that upon collateral attack of a domestic court of general jurisdiction the want of jurisdiction or invalidity of the judgment must affirmatively appear upon the record itself, and until the contrary ap*29pears it will be presumed that-the court bad jurisdiction. Nothing will be intended to be out of the jurisdiction of a court of general jurisdiction but that which expressly appears to be so. The absence from the record of the necessary jurisdictional facts will not overcome the presumption of jurisdiction, and that papers which ought to have been included in the judgment-roll are missing therefrom is not enough to make it affirmatively appear that the court had no jurisdiction. In the absence, therefore, of any showing in the record either one way or the other, a presumption arises in favor of the validity of the judgment of a court of general jurisdiction, and the existence of all matters going to the power of the court or tribunal to render the judgment.”

In other words, the plaintiff must allege facts which if proven will show that the judgment is void, and this he has not done in the instant case. Because the summons and pleadings were served upon the defendant at Lodi, California, on the same day that the affidavit for service by publication was filed in the office of the clerk of court of Mountrail county, North Dakota, we can not assume that the service was made before the filing, that is a question of fact which must be alleged and proved.

The petition for rehearing is denied.

ChbistiaNSON, Bibdzell, Nuessle, and Burr, JJ., concur.