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 shall be stated, will be rendered accordingly. Where land has been attached under order of attachment against a non-resident defendant, the publication should contain a description of the land, and failing to do so, renders it defective. 6 Kan. 385; 38 K. 450. And where the publication notice fails to contain a description of the real estate attached and omits entirely to state the nature of the judgment which is sought, as required by sec. 4278 of Wilson's Statutes, it is not voidable only, but void. Garrett v. Struble. 57 Kan. 510. This leaves for consideration whether such irregularities in an attachment proceeding can be availed of by an intervenor by motion to dissolve the attachment. The section of the statute providing that third persons claiming or having interest in property attached may intervene in attachment proceedings, and by plea of intervention set up their claim, reads as follows: "Any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit made by himself, agent or attorney, and issues may be made upon such interpleader and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay." Sec. 4244, Wilson's Rev. Statutes. The Supreme Court of Kansas, in an early case in which the opinion was written by Mr. Justice Brewer, lays down the rule that an intervenor under this statute can attack the attachment proceedings for only such irregularities therein as would render the same subject to attack in an independent collateral action. In that case the affidavit for attachment failed to set forth any ground for attachment. It was held that such affidavit was fatally defective and failed to confer jurisdiction upon the court to issue the writ of attachment, and was therefore such an error as would render the attachment subject to collateral attack and was ground for a motion to dissolve by an intervenor, interpleading in the attachment proceedings. Dickerson & Bro., v. Cowley, 15 Kan. 299. The doctrine of this case was never, so far as we are informed, expressly overruled by reference, thereto in any subsequent case from the Supreme Court of Kansas, but the following cases appear for a time to have established a rule in that jurisdiction, if not in direct conflict, at least not in entire harmony with the rule in Dickerson v. Cowley: 27 Kan. 375; 46 Kan. 507; 51 Kan 53; 51 K. 321; 51 Kan. 566. But this question came directly before the court for consideration again in Standard Implement Co. v. Lancing Wagon Works, 58 Kan. 125. Plaintiff insists that although the affidavit for publicaand notice are defective, such defects do not defeat the court's jurisdiction over the property attached so as to render a judgment thereon a nullity and subject to collateral attack. Upon this question there is some conflict among the authorities, but the doctrine of the Kansas cases seems to be that such defects render the judgment and any subsequent proceedings in the action void. Under the doctrine of these cases, a judgment rendered upon the affidavit for service by publication and the service thereof had in this case would have been void upon collateral attack and intervenor could therefore attack the same in this proceeding by proper motion. Of the cases holding the contrary doctrine, Cooper vs. Reynolds, 10 Wall. 308 is a leading case. In that case, it was held that the basis of the court's jurisdiction in an attachment proceeding is the seizure of the property under a valid writ and that defects and irregularities in the publication notice or the entire absence of publication notice will not make a judgment rendered in the action absolutely void, although such facts might be grounds for reversal in direct attack. Other cases which follow Cooper v. Reynolds, are: Green v. Thompson, 53 Mo. 183; Kane v. McCown, 55 Mo. 181; 34 Ark. 379; 17 Iowa 107; 34 Ore. 518; 46 Neb. 740; 55 Neb. 200. But it may be asked, since no judgment has been rendered in this action, and the attack of the intervenor is not upon a judgment but upon the order of attachment, whether, although the affidavit for publication and the service by publication are fatally defective and void, if such facts destroy the order of attachment and the lien upon the attached property in favor of the plaintiff created by the levy of the writ thereon, and constitute ground for dissolving the attachment. Sec. 4365 of Wilson's Statutes provides that the plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment the property of the defendant upon the grounds thereinafter stated. Sec. 4257 provides that a civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing summons to be issued thereon. Sec. 4218 provides that an action shall be deemed commenced at the date of the summons which is served upon the defendant, and where service by publication is proper, the action shall be deemed to have commenced at the date of the first publication and said section further provides that an attempt to commence an action shall be deemed equivalent to the commencement thereof when the party faithfully, properly and diligently endeavors to procure service, but that such attempt must be followed by the first publication or service of summons within sixty days. This section of the statute was held in Dunlap v. McFarland, 25 Kan. 340, to have no application to the commencement of actions in order to authorize the issuance of an attachment therein, but to apply only to the statute of limitations. But in Bannister v. Carroll, 43 Kan. 63, the court in discussing these various provisions of the statute, says: "Now in view of these various provisions, it would be an absolute absurdity to hold that before an attachment can issue against an absent defendant, on the ground that he is a non-resident of the state, an effort must be made by the sheriff of the county in which the order of attachment is issued, to personally serve a summons upon such non-resident. In view of all these complications and absurdities, we think the proper construction to be given to section 57 of the code is, that when a petition is filed and a summons served, or the first publication is made within sixty days, such service or first publication relates back to the time of the filing of the petition and precipe and other necessary papers, and by such relation the suit is to be deemed to have been commenced at the date of their filing." Jones et al v. Warnick, 49 Kan. 63 is in point. In that case, it is held that where, in an attachment proceeding, the service was obtained by publication, if the first publication was not made within sixty days from the date of the filing of the petition and other necessary papers, an order of attachment cannot be issued and served for the reason that no action had been commenced. Under this construction of these provisions of the statute, the attachment proceeding in the action in the case at bar has failed, for although plaintiff had a summons issued on the day of filing his petition, no service has ever been made of such summons, and although he filed the affidavit for publication service, and publication service was attempted to be made, each was so defective as to be a nullity, and plaintiff now stands in the same position as if no affidavit for publication service and no service by publication had ever attempted to be made. When the motion of intervenor was filed and the court rendered judgment thereon, nearly a year had elapsed since the filing of plaintiff's petition. No service of summons had been made and no legal summons by publication had been begun. Had the defects in the affidavit for publication service and in the publication notice been such as to render them only voidable instead of void, having been filed or begun within the time provided by statute, such defects could be cured by amendment and the first publication would then have related back to the time of the filing of the petition and intervenor's motion should have been overruled. But under the facts in the record, we think the trial court committed no error for which the judgment should be reversed and the judgment is therefore affirmed. LATE BANKRUPTCY DÉCISIONS. Discharge in Bankruptcy-Destruction or Concealment of Property. In the case of In re Boner, 22 Am. B. R. 151, it was held that where a debtor, several months prior to his adjudication, turned over to his assignee for creditors, property which he believed amply sufficient to pay all his debts, the fact that anywhere from 11 to 20 months prior to his adjudication he knowingly and fraudulently lost, disposed of and squandered in drunkenness and indulgences and in other vices, large sums of money belonging to his estate, and that he failed to turn over to the assignee for creditors, the rent of a farm owned by his father, is not sufficient ground for denying him a discharge. Debts-Priority-State is a "Person". In the case of In re Western Implement Co., 22. Am. B. R. 167, it was held that a State is a "person" within the meaning of the Bankruptcy Act. 1898, and where a debt due to a State is entitled to priority under its insolvency law, it is. under section 64b (5) of the bankruptcy Act entitled to priority against the debtor's estate in bankruptcy. Exemptions-Amendment to Schedule Upon Re- Where, after a bankruptcy estate has deen closed, additional assets are discovered and the trustee is reinstated, it is held in the case of In re Irwin, 22 B. R. 165 that the bankrupt, had received but a part of his exemptions, because of insfficiency of assets, may be permitted to so amend his schedules as to claim the full amount of his exemptions, it appearing that he acted in good faith. |