Mr. Isaman and the defendant. Stated that he saw Mr. Isaman at the request of defendant, and asked him to enlarge the hotel, put an addition on, and give a 20-year lease. "We went over the details. He asked me to state specifically what changes we would want. I told him to go down and see Miss Stephens. Mr. Isaman, Miss Stephens, and myself went over these changes. He said he would still think it over. Three or four days afterwards, I met him by appointment. I asked him what the rent would be, and he said, '$225 per month.' He afterward came to the house. Miss Stephens came into the room. He told us that he had thought the entire matter over, and that he could not lease for twenty years, nor fifteen years, but that he would give a ten-year lease for $225 per month; and I told Miss Stephens to dismiss the matter. He came back some few days afterwards and accepted the proposition that we made for a ten-year lease." Then he testifies as to the contract for work to be done, and the rent stipulated for the entire building after January 1, 1902, was to be $200 per month. "She to give a bond, signed by herself and Col. Vernon, for the sum of $3,000. The bond was to secure the payment of the rent. Col. Vernon consented to signing the bond at request of Mr. Isaman." The testimony of defendant is a reiteration and confirmation of all the averments of her answer and allegations of her cross complaint and affirmative matter set out in her answer. Other witnesses testified on behalf of the plaintiff, but, as no denial of any of the evidence on behalf of defendant was offered by the plaintiff, it is unnecessary to quote further from the evidence.

Appellant assigns 23 errors occurring on the trial. A careful inspection of the record discloses that it will not be necessary to pass upon all the assignments of error. If the contention of appellant is to be accepted as the law of the case, she would be entitled to relief, if we take the pleadings of defendant and cross complainant as our only guide. Appellant alleges that she was to have a 10year lease from January 1, 1902, on the property in controversy; she to execute a good and sufficient bond in the sum of $3,000, conditioned for the faithful performance of her part of the contract. Respondent alleges that the lease was to be for 3 years from the 1st day of January, 1902, conditioned that appellant should execute and deliver a good and sufficient bond in the sum of $1,000, with conditions for the faithful performance of her part of the lease. It is alleged by appellant that the agreement for lease was verbal, and this is admitted by respondent. The respondent having failed to introduce any testimony, we are confined to the pleadings, evidence on behalf of appellant, and findings of the court, to aid us in ascertaining whether the judgment of the court should be sustained.

It is urged by counsel for respondent that, under the provisions of subdivision 5 of section 6009 of the Revised Statutes (statute of frauds), the appellant is remediless, under the pleadings. It says: "An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein, and such agreement if made by an agent of the party sought to be charged is invalid unless the authority of the agent be in writing subscribed by the party sought to be charged." Section 6008 of the statute: "The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to compel the specific performance of any agreement in case of part performance thereof." It is urged by counsel for appellant that there has been such part performance of the agreement by both appellant and respondent as to bring it under the provisions of the last section, and he cites a number of authorities in support of his position. We are of the opinion that a careful inspection of the record and the evidence in this case sustains him in his position, and we so conclude. Barton v. Dunlap (Idaho) 66 Pac. 832; Story, Eq. Jur. §§ 747, 759, 761, 763; Pom. Eq. Jur. §§ 921, 1293; Feeney v. Chester (Idaho) 63 Pac. 192; Stowell v. Tucker (Idaho) 62 Pac. 1033; Francis v. Green (Idaho) 65 Pac. 362. When we look to the evidence in this case, we find that it is established by appellant that she had repeated conversations with Mr. Isaman, who, she alleges, was the brother and agent of respondent, in which he promised and agreed that as soon as the work was completed, which it was thought would be about the 1st of June, 1901, a lease according to their agreement would be executed and delivered to her, upon condition that she would execute her bond in the sum of $3,000 for the faithful performance of her part of the contract. She also says that the bondsmen were agreed upon, to wit, Col. Vernon and Fred Woods, and that they agreed to sign such bond. Fred Woods and Col. Vernon corroborate all the statements of appellant as to the terms and conditions of the agreement, and, in the absence of any testimony to the contrary, we are led to the conclusion that the court erred in finding that plaintiff and defendant did not enter into an agreement or contract which "a court of equity can enforce specific performance of, and that no such part performance of any contract was had as would obviate the necessity of a written agreement, or as would support a decree for specific performance."

Appellant assigns as error the refusal of the court to assess the damages, as shown by the proof, she had sustained by reason of respondent not having complied with her part of the agreement. If the damages were

definitely alleged in the cross complaint, it would have been incumbent upon the court to ascertain the amount, if any, the appellant had sustained; but we do not think the allegations of the cross complaint sufficiently definite to warrant us in holding that the court erred in refusing to dispose of this question under the pleadings.

A number of errors are assigned, based upon the refusal of the court to admit certain evidence, that we deem unnecessary to pass upon. It is evident that the rulings of the court on all questions relative to the admission of evidence were based upon the theory that the appellant was entitled to no relief under the pleadings and evidence of appellant, and hence all evidence relative to damages under the verbal contract or agreement between the parties was inadmissible.

Cause reversed, and remanded for further proceedings in harmony with this opinion, with costs to appellant.

2. Where service of summons on a nonresident defeudant is made by publication, and his property within the state is attached, and a personal judgment thereafter entered, the judgment is valid as against the property attached, but no further.

3. There is no statute in this state requiring the judgment in a case like the one at bar to recite that an execution shall issue against the attached property; that it is a judgment in rem, and only valid as against the property attached.

4. Under each subdivision, 1 and 2, of section 4303, Rev. St., the affidavit for an attachment must state amount of the indebtedness sought to be recovered, over and above all legal set-offs or counterclaims.

5. In an affidavit for an attachment against the property of a nonresident, it is not absolutely necessary to aver therein that the defendant is a nonresident, provided the affidavit shows that the debt is not secured.

6. The provisions of said section do not, in terms, require the affidavit to state that the indebtedness is due, but by necessary implication it clearly requires that to be done.

7. Under the provisions of section 4229, Rev. St., a motion may be made to vacate and set aside a judgment within six months after the adjournment of the term at which such judgment was rendered.

8. A court of general jurisdiction is presumed to have acted regularly and as prescribed by law, unless the contrary is shown by the record.

(Syllabus by the Court.)

Appeal from district court, Shoshone county; A. E. Mayhew, Judge.

Action by Aoner G. Kerns, receiver, against George B. McAulay and others. Judgment

for defendants, and plaintiff appeals. Affirmed.

W. W. Woods and W. E. Borah, for appellant. Charles E. Miller and W. B. Heyburn, for respondents.

on

On

SULLIVAN, J. This is an appeal from an order made after judgment vacating and declaring said judgment null and void, quashing and setting aside a writ of attachment issued in said action, and revoking and setting aside all proceedings had under said judgment, and entering judgment against plaintiff, who is appellant here, for costs of said motion. Suit was brought by the appellant, as receiver of the property of the Cour d'Alene Bank, against George B. McAulay and Van B. De Lashmutt, to recover a balance on an account amounting to $1,045.16, with interest thereon at the rate of 10 per cent. per annum, and costs of suit. An affidavit and undertaking in attachment were filed. Summons was issued, and returned by the sheriff, "Defendants not found." Service was then attempted to be made by publication. The writ of attachment was levied upthe California lode-mining claim. March 12, 1901, the default of the defendants was entered. The plaintiff proved the allegations of his complaint, and judgment was entered in favor of plaintiff for the sum of $51,045.21. It is not claimed that a personal appearance was ever entered by the defendants, or that personal service of summons was ever made on either of them. The affidavit for service of summons by publication states that the defendants were nonresidents, and could not be found in the state, and the only service of summons upon either of the defendants was by publication thereof in a newspaper, and sending a copy of the summons and complaint through the mail to the address of defendants in the state of Washington. An attempt was made to obtain jurisdiction of certain property belonging to defendants, situated in Shoshone county, state of Idaho, consisting of said California mining claim, by attaching the same as above stated. Said judgment was rendered on March 12, 1901. The defendants appeared specially in the trial court on the 26th day of September, 1901, and moved to dissolve said attachment and vacate said judgment on the following grounds, to wit: "(1) That the said plaintiff, Abner G. Kerns, was at no time authorized by the court by whom he was appointed such receiver of the said Coeur d'Alene Bank to institute and bring this action against these defendants. (2) That these defendants, or either of them, were not personally served with the process of this court, requiring them to appear and defend against the complaint filed herein. (3) That no valid and sufficient affidavit for the attachment of the property of these defendants to secure the jurisdiction of this court was ever filed prior to the issuance of the writ of attachment herein. (4) That the pretended affidavit for attachment, filed herein,

to wit, November 26, 1900, was insufficient | and absolutely void, for the following reasons, to wit: (a) Because it is not stated and averred in said pretended affidavit that the indebtedness therein mentioned is 'over and above all legal set-offs and counterclaims.' (b) Because it is not stated and averred in said pretended affidavit whether said indebtedness is 'upon a judgment,' or 'upon a contract for the direct payment of money,' or either or both. (c) Because it is not stated and averred in said pretended affidavit that these defendants therein named, or either of them, are nonresidents of the state of Idaho. (d) Because the said pretended affidavit is false as to material facts, in this: that it is therein stated that these defendants were then and there indebted to the plaintiff in the sum of forty-three thousand nine hundred ninety-five and 72/100 dollars ($43,995.72), whereas it appears from the complaint herein, verified upon the oath of plaintiff, that the sum of nineteen thousand nine hundred and fifty and 56/100 dollars ($19,950.56) had, to wit and theretofore, April 1, 1897, been paid on said principal sum of forty-three thousand nine hundred and ninety-five and 72/100 dollars ($43,995.72), and such payment is therein duly credited. (e) Because it does not appear from said pretended affidavit that the indebtedness therein referred to was due. (f) Because it appears from the said pretended affidavit that the indebtedness therein referred to was barred by the statute of limitation at the time of the commencement of this action. (5) Because the complaint herein does not state a cause of action against these defendants. (6) Because the said judgment rendered herein as aforesaid is purely a personal judgment, not based on personal service on these defendants, and is not a judgment against any of the property of these defendants, or either of them."

After a hearing on said motion the court quashed the attachment, set aside the judgment, revoked all proceedings thereunder, and entered judgment against appellant for costs of the motion. Appellant contends that the court erred in holding said judgment void and vacating the same. The judgment to the extent of the value of the attached property is good, provided the attachment was valid; but, if the attachment was void, the judgment is absolutely void, for a personal judg ment is not good against one who has not appeared in the action, and not personally served with summons. It is shown that the defendants were nonresidents, and it is well settled that a personal judgment cannot be rendered against a nonresident served only by publication. Such service is not "due process of law," and the court does not thereby obtain jurisdiction to render a personal judgment. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. Ed. 959; Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. 586, 28 L. Ed. 101; Freeman v. Alderson, 119 U. S. 188, 7 Sup. Ct. 165,

30 L. Ed. 372. In the last-cited case it is held that a state court cannot determine the validity of any demand against a nonresident, in the absence of personal service or his personal appearance, beyond such as may be satisfied by property within its jurisdiction; and to the same effect are all of the abovecited cases. See, also, Dull v. Blackman, 169 U. S. 243, 18 Sup. Ct. 333, 42 L. Ed. 733; Dewey v. City of Des Moines, 173 U. S. 203, 19 L. Ed. 379, 43 L. Ed. 665.

It is contended that an attachment of property of a defendant within the jurisdiction of the court, although a proceeding in rem, will not support a personal judgment against a nonresident upon whom personal service has not been had, and for that reason that the personal judgment in the case at bar is absolutely void. We agree with counsel in that contention in cases where a personal judgment has been entered, and no property of the defendant has been attached prior to the entry of such judgment. But in cases where property has been attached, such attachment brings the property attached into the jurisdiction of the court, and a personal judgment entered in such case is good as to the property attached. Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931. We have no law in this state requiring a judgment in cases like that at bar to recite that an execution shall issue against the attached property, or that it is a judgment in rem, and only valid to the property attached. In such cases, after the attached property is exhausted no execution can be legally issued for any unpaid balance on such judgment after the application of the proceeds of the sale of the attached property. We think that it would be better practice in this class of cases for the judgment to recite the fact of the attachment, and contain an order for the disposition of the attached property, and recite that the judgment was valid only in so far as the application of the proceeds of the sale of the property paid or satisfied it.

It is contended that said attachment is absolutely void, for the reasons stated in the motion above quoted, and the court was justified in quashing said writ and setting aside said judgment. As this is the most important question in this case, we will here quote the affidavit on which said writ was issued, to wit: "State of Idaho, County of Shoshone -SS.: Abner G. Kerns, being first duly sworn, on his oath says that he is the receiver of the property of the Coeur d'Alene Bank, and the plaintiff in the above-entitled action; that the defendants, George B. McAulay and Van B. De Lashmutt, are indebted to the plaintiff, as such receiver, in the sum of forty-three thousand nine hundred ninetyfive and 72/100 dollars ($43,995.72), with interest thereon from the 10th day of April, 1893, at the rate of ten per cent. per annum, less the sum of $19,950.56, with interest thereon at the rate of ten per cent. per annum from the 10th day of April, 1893, to the 1st

day of April, 1897, upon a balance of account for moneys paid, laid out, and expended by said Coeur d'Alene Bank for the use and benefit of the defendants, and at their request, between the 1st day of January, 1891, and the said 10th day of April, 1893, in the county of Shoshone, state of Idaho, and that the payment of said sum has not been secured by any mortgage or lien upon real estate or personal property, or pledge of personal property; that this attachment is not sought and this action is not prosecuted to hinder, delay, or defraud any creditor of the defendants." And the following is section 4303, Rev. St., under which this affidavit was filed, and the writ issued: "Sec. 4303. The clerk of the court must issue the writ of attachment, upon receiving an affidavit by or on behalf of plaintiff, setting forth: (1) That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs or counterclaims) and whether upon a judgment or upon a contract, for the direct payment of money and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or if originally secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; or (2) that the defendant is indebted to the plaintiff (specifying the amount, of such indebtedness over and above all legal set-offs or counterclaims), and that the defendant is a non-resident of the territory; and (3) that the attachment is not sought, and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant." It is contended that said affidavit was deficient in the following particulars: (1) That it did not specify the amount of the indebtedness, over and above all legal set-offs or counterclaims; (2) that it did not specify whether the indebtedness was claimed upon a judgment or upon a contract for the payment of money; and (3) it did not allege that the defendants were nonresidents of the state of Idaho. Each of said subdivisions requires the affidavit to specify the amount of the indebtedness sought to be recovered, over and above all legal set-offs or counterclaims. The affidavit fails to do that, and is therefore fatally defective. It does state, however, that defendants are indebted to plaintiff in the sum of $43,995.72, with interest, less the sum of $19,950.56. That is not equivalent to and does not mean that the indebtedness is the former amount, less the latter, over and above all legal set-offs or counterclaims. Said statement may be absolutely true, and there exist other legal set-offs or counterclaims against said balance. The second point against said affidavit is not well taken. The affidavit does sufficiently aver that said indebtedness was upon a contract for the payment of money. However, it does not aver that said defendnts are nonresidents, and the majority of

court are of the opinion that it is not

absolutely necessary to include that averment in the affidavit when the writ is sought against the property of a nonresident, or if it does the said second subdivision does not require the affidavit to state that the debt was not originally secured. The first subdivision of said section 4303 is intended to apply to affidavits for attachments against the property of resident as well as nonresident debtors, and subdivision 2 thereof to affidavits for attachments against nonresident debtors only. The affidavit for a writ of attachment must set forth all of the statutory requirements, either in the language of the statutes, or in language of substantially the same purport or meaning. If it fails to do so, the court has no jurisdiction to issue the writ. In case the writ is sought against the property of a nonresident, it is sufficient to set forth in the affidavit just what is required by the second subdivision of said section 4303, and no more. However, if all of the requirements of subdivisions 1 and 2 of that section were set forth in the affidavit, it would not render it void or ineffective. The requirements of the third subdivision of said section must be set forth in all such affidavits. The affidavit for a writ against the property of a nonresident defendant will not be void if it fails to aver the nonresidence of the defendant. Said statute, in terms, does not require the affidavit to state that the indebtedness is due, but by necessary implication it clearly requires it.

It is contended by appellant that the motion to set aside and vacate said judgment was not made in time, for the reason that it was not made within six months after the rendition of said judgment, and the case of Investment Co. v. Curtis (Idaho) 51 Pac. 767, is cited. While it is stated in the opinion of that case that said motion came too late, as it was made more than six months after the rendition of the judgment therein, the court should have said within six months after the adjournment of the term at which said judgment was rendered. See section 4229, Rev. St. 1887. The record contains no statement of the date of the adjournment of the term at which said judgment was rendered, and, if appellant desired to rely upon that point, it ought to have been called to the attention of the court below, and the transcript made to show the date of the adjournment of said term. As the record stands, this court must presume that said motion was made within the statutory time. The presumption of the regularity of the action of the trial court, and that it granted only motions made within the time required by law, must prevail. In this state, we have no statutory provision, authorizing attachment proceedings, where the debt has not yet matured.

It is contended that it must be made to appear by the affidavit, when the defendant is a nonresident, that he has property within this state, before the writ can legally issue. That point is not well taken, as the statutes

of this state do not require that to be done. In some states, however, that is made a requisite.

It is contended that the matters complained of in said motion were mere irregularities, and that the attachment lien was merged in the judgment, and, that being true, such irregularities are not ground for vacating a judgment. The matter complained of was more than a mere irregularity. It went to the very foundation of the jurisdiction of the court, and for that reason there is nothing in said contention.

As said writ of attachment was void, the court obtained no jurisdiction over the property levied upon under it, and, as the summons was not personally served, the court had no jurisdiction of the persons of the defendants, and for these reasons the judgment was void; and the court did not err in revoking and setting aside said judgment, and in entering judgment in favor of the defendants for costs of said motion.

The action of the trial court is affirmed, with costs in favor of respondents.

QUARLES, C. J., and STOCKSLAGER, J.,

concur.

On Rehearing. (July 8, 1902.)

PER CURIAM. In his petition for a rehearing, the appellant contends that the court erred in its construction of section 4303, Rev. St., and that the matter therein stated parenthetically need not be stated in the affidavit; the same being directory, and not mandatory. This contention, if recognized and given force, would make it unnecessary to state the amount of the debt owing to the plaintiff in an attachment proceeding. No such result was contemplated. The statute contemplated that the matter stated parenthetically should be stated in the affidavit for attachment, viz., the amount of the debt due to plaintiff over and above all legal set-offs or counterclaims. It would not be consistent to hold that the plaintiff must state a portion of the parenthetical matter, and not all of it. And it is apparent that the statute contemplated that the amount of the indebtedness should be stated in the affidavit; hence we must hold to the ruling already announced in this case,-that it must state the indebtedness over and above all legal set-offs or counterclaims.

The rehearing asked is denied.

(41 Or. 495)

STATE v. O'DAY et al. (Escheat case.) SAME v. TARPLEY et al. (Contempt case.) (Supreme Court of Oregon. July 14, 1902.) ESCHEAT PROCEEDINGS-COUNTY COURT

PROBATE JURISDICTION-APPEAL.

1. Hill's Ann. Laws Or. § 535, gives an appeal from any order affecting a substantial right which in effect determines the suit or action. Held, that where, after the adminis

trator had distributed the assets of the estate to those found to be the lawful heirs, an order was made in escheat proceedings, to which the heirs were not a party, directing them to deliver the property to a receiver in the escheat proceedings, the order was appealable.

2. Where, after the giving of notice of the settlement of the final account of an administrator, he is removed, and another is appointed, such action does not destroy the efficacy of the notice.

3. Hill's Ann. Laws Or. § 895 et seq., give the county court exclusive jurisdiction pertaining to a court of probate to direct the payment of debts and the distribution of estates. By section 3099 the residue of personal property of one dying without heirs, after payment of debts and charges, escheats to the state. Prior to 1887, by Deady & Lane's Gen. Laws Or. p. 582, it was made the duty of the administrator to sell property of the estate, and pay the net proceeds thereof into the treasury of the state, whenever the administration had been completed, and there were no known heirs. Acts 1887 (Hill's Anu. Laws Or. § 3137) provide that whenever the governor has reason to believe personalty of a decedent has escheated to the state, he shall cause an information to be filed in the circuit court for a decree escheating the estate. Under Hill's Ann. Laws Or. § 3136, the state is entitled to maintain any proceeding necessary for protection of its rights in the matter of escheated property, in like manner as any natural person. Held that, on filing an information under section 3137, the circuit court had no authority to make an order requiring those found by the county court to be the heirs of decedent to turn over to the receiver in the escheat pro-. ceedings the property distributed to them by the administrator under direction of the county court, since the statutes show that the escheat proceedings were not intended to interfere with the authority and jurisdiction of the county court in probate matters.

Appeal from circuit court, Multnomah county: John B. Cleland (escheat case) and Arthur L. Frazer (contempt case), Judges.

Escheat proceedings by the state for a decree escheating the estate of P. C. McCann. From an order directing Thomas O'Day and another to deliver property to the receiver, and from an order adjudging them in contempt, they appeal. Reversed.

In September, 1895, one P. C. McCann died intestate in Multnomah county, leaving personal property to the value of about $8,000, and J. S. Cooper was regularly appointed administrator of his estate by the county court of that county. After the estate had been fully administered, Cooper filed his final account, showing a balance on hand for distribution of $6,268.47 in cash, 10 shares of the capital stock of the First National Bank of Independence, and a few other articles of personal property. The court thereupon set a day for hearing objections to such final account and for the settlement thereof, and directed that notice be given as provided by law, which was done accordingly. But before the account had been settled and the property distributed, and on September 7, 1899, Cooper was removed as administrator, and John F. Logan appointed as his successor. A few days thereafter an information was filed, under section 3137, Hill's Ann. Laws Or., in the circuit court of Multnomah