facts to be true from letters received from them; that he had made diligent search for defendants in Custer county at the time of the filing of the original affidavit and knows that they were not in Custer county nor in Oklahoma, and that they have been absent therefrom ever since, and that service of summons could not have been had upon them in Oklahoma. These affidavits are attacked upon several grounds. It is first urged that they are void for the reason that they fail to state facts to show wherein due diligence was used to find the defendants. Section 4277 of Wilson's Revised and Annotated Statutes, being section 79 of the Code, provides: "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."

While it is stated in the orignal affidavit that diligence was used, and while it is stated in the amended affidavit that diligent search was made by plaintiff for defendants in Custer county, in neither the original nor the amended affidavit are facts constituting such diligence fully set out. But we think sufficient facts are set out in these affidavits to render them valid, if they are regular in all other respects.

In Washburn v. Buchanan, 52 Kan. 417, construing the same statute, the court held an affidavit for publication in which it was stated that defendants were nonresidents of the State, and that service could not be made upon them within the State, was not insufficient because plaintiff had failed to state therein what diligence had been used by him to obtain service. See also Roberts v. Fagan, 76 Kan. 539.

In

Intervenor relies upen Cordray v. Cordray, 19 Ok. 36, as supporting his contention upon this proposition. that case the affidavit as a basis for publication was in the following form:

"Salia M. Cordray, being first duly sworn, upon oath says she is the plaintiff in the above entitled cause, and that defendant, J. W. Cordray, is not a resident of the territory, but to the best of her knowledge and belief is a resident of ...... and that service of summons in this case cannot be had upon the said defendant in the territory of Oklahoma."

It was held that this affidavit did not comply with the provisions of the statute and that judgment rendered thereon was void for want of jurisdiction over the defendant; because, first, the affidavit was defective in that it failed to state what, if any, diligence was used to secure personal service upon the defeudant; second, it failed to state the nature of the action; third, it failed to state that at the time of making the affidavit the defendant was out of the Territory of Oklahoma. We think the rule announced by the court in the third syllabus, wherein it was held that said affidavit was defective for the reason that it failed to state any facts showing that diligence was used is correct as applied to the facts of that case. In that case, plaintifi did not state that service of summons could not be had upon the defendant in the Territory of Oklahoma, but her allegation with reference thereto was that to the best of her knowledge and belief defendant was a resident of .... and that

service of summons upon him could not be had in the Territory. This is not equivalent to saying that defendant was absent from the Territory or that service could not be had upon him therein. She may have stated the truth when she stated that to the best of her knowledge and belief that service could not be had upon him, but that knowledge and belief may have not been based upon such information as was the result of diligence. It could not be said from that affidavit that defendant was absent from the Territory of Oklahoma at the time the affidavit was made or that service could not be had upon him in said territory. Affiant did not so state. She said only that her information and belief was that such were the facts. An affidavit upon information and belief that defendant is a non-resident or that service can

not be had upon said defendant in the State is sufficient. Harding v. Gillett, 10 Ok. 186. But in the case at bar, plaintiff states positively that defendant is not a resident of the Territory and that service cannot be had upon him therein. If such statment is true, no amount of diligence would have enabled plaintiff to obtain service up on him, and if service could have been had by due diligence, then affiant could not have stated in his affidavit that it could not be made within the Territory. In Cordray v. Cordray, supra, plaintiff did not say that service could not be had within the Territory, and having failed to say so, it was incumbent upon her to show what diligence she had used to ascertain whether service could be had upon him within the Territory at the time of her making her affidavit. Nor is the conclusion where reach in conflict with Nicoll, et ux, v. Midland Sav. & Loan Co., recently decided by this court, but not yet officially reported. 96 Pac. 744. In that case, defendant was a foreign corporation, who, under section 1227 of Wilson's Revised and Annotated Statutes, was required to appoint an agent who should reside at some accessible point in the Territory, in the county where the principal place of business of said corporation was carried on, or at some place within the Territory, if such corporation had no principal place of business, which agent should be duly authorized to accept service of process, and upon whom service of process might be made in any action in which the corporation was a party. The affidavit for publication in that case recited that defendant is a foreign corporation and is a non-resident of the Territory of Oklahoma and has not complied with the laws by designating a person on whom to serve process in Noble county, Oklahoma, and has no office or place of business in said county. and that plaintiffs, with the exercise of due diligence, are unable to procure service of summons on the said defendant within the Territory of Oklahoma. This affidavit fails to state that no agent has been appointed in the territory upon whom service of summons could be had, but only that no agent had been designat e upon whom service of process could be had in Noble

county. Nor does the affidavit state that service cannot be had upon the Company in the Territory. There is no allegation that it has no place of business in other parts of the Territory than in Noble county, or that it has no agent in such other counties of the Territory. In the absence of such allegation, the mere statement that plaintiff had exercised due diligence to obtain service and had been unable to procure it, was insufficient without showing what diligence they had used.

Section 4277,supra, requires that the affidavit for publication shall show that the case is one of those mentioned in the preceding section. The preceding section to which reference is made reads as follows:

"Service may be made by publication in either of the following cases: In actions brought under the 28th and 49th sections of this code where any or all of the defendants reside out of the Territory, or where the plaintiff with due diligence is unable to make service of summons upon such defendant or defendants within the Territory; in actions brought to establish or set aside a will, where any or all of the defendants reside out of the Territory; in actions to obtain a divorce where the defendant resides out of the territory; in actions brought against a non-resident of the territory, or a foreign corporation, having in this Territory property or debts owing them, sought to be taken by any of the provisional remedies, or to be appropriated in any way; in actions which relate to, or the subject of which is, real or personal property in this Territory, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein and such defendant is a non-resident of the Territory or a foreign corporation; and in all actions where the defendant, being a resident of this Territory, has departed therefrom, or from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of a summons, or keep himself concealed therein with the like intent."

These sections of the statute have been repeatedly before the Supreme Court of the State of Kansas for construction, both before and since the adoption of our code from that State by the Territorial Legislature. A failure to make proper averments in the affidavit of such facts as to show that the case is one of those provided for by section 4276 renders it insufficient to support service by publication. Leavenworth, Topeka & Southwestern Ry.

Co. v. Stone, 60 Kan. 57; Garrett v. Struble, 57 Kan. 508 An allegation in the affidavit that the case is one of those mentioned in sec. 4276 is not such a statement of fact as is required by the section to be made in the affidavit. 62 Kan. 784. The original affidavit in this case fails to aver facts sufficient to show that it is one of the cases in which service by publication is authorized; it in no manner sets out any facts to indicate the character of the case or judgment sought therein. In the amended affidavit filed, it is alleged that at the commencement of the action, an order of attachment was caused to be issued by plaintiff and levied upon certain real estate of the defendants, describing it, which alleged facts inferentially to indicate the character of the judgment sought in the action. But the trial court evidently took the view that the original affidavit was so defective in this respect that it could not be cured by amendment. Affidavits for publication are amendable as to some defects. Foreman vs. Carter, 9 Kan. 674; 21 Kan. 125; 30 Kan. 532. But if the affidavit fails to state directly, inferentially, or in any other way any matter required by the statute it is fatally defective, and service by publication cannot be obtained thereon. 36 Kan. 543. Where the jurisdictional facts necessary to warrant service upon defendant by publication were in existence at the commencemeut of the action and the affidavit for publication is defective only in that it states inferentially a matter required to be alleged, it is amendable even after judgment Pierce v. Butters supra; 38 Kan. 589. But where there is a total want of averment in the affidavit of some material fact, as in this case, it is void. Harris v. Claflin, 26 Kan. 543.

The notice of publication does not describe the property attached, nor state the nature of the judgment that plaintiff will take against the defendants. Section 4278, Wilson's Statutes provides what the publication notice shall contain. It shall 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 plaint iff on or before a time to be stated, which shall not be