
    Argued January 20,
    affirmed February 8,
    rehearing denied February 29, 1916.
    LESLIE v. McNEIL. 
    
    (154 Pac. 884.)
    Attachment—Affidavit for Publication—Sufficiency.
    1. An affidavit for publication of summons in a suit in which an attachment is levied on land must allege that the defendant has property within the state; and, it failing to contain such an averment, the court does not acquire jurisdiction, and any judgment based thereon is void.
    [As to defects in attachment proceedings, see note in 76 Am. St. Rep. 800.]
    Prom Coos: John S. Coke, Judge.
    Department 2.
    Statement by Mr. Justice Benson.
    Gr. W. Leslie began an action in the Circuit Court of Coos County against J. D. McNeil and Nellie T. McNeil, his wife, for the recovery of money by filing a complaint and placing in the hands of the sheriff a summons to be forwarded to the sheriff of Harney County, where defendants then resided, and a writ of attachment was issued and a levy made thereunder by the sheriff of Coos County upon certain real- property. The summons was subsequently served upon the defendants personally in Harney County, and they appeared specially by a motion to quash the service of summons which motion was allowed. Thereafter an alias summons was issued and placed in the hands of the sheriff of Coos County for service, and by him returned “Not found. ” This was followed by the filing of an affidavit for publication of the summons, since in the meanwhile the defendants had removed to Texas. The affidavit contains, among others, the following allegation:
    
      “That at the time said summons and also said alias summons was in the hands of the sheriff for Coos County, Oregon, for service, there was at each of said times a writ of attachment issued in this cause and in the hands of said sheriff for service, and that immediately upon the receipt of each of said writs of attachment the sheriff of Coos County, Oregon, did then and there execute the same and attach certain real property situated in Coos County, Oregon, which property the said sheriff now holds under and by virtue of said writ.”
    Thereafter an order was made and entered directing the publication of the summons, and as a result of such publication a judgment was entered upon the default of the defendants, which contained the following clause:
    “It further appearing to the court that there being certain real property attached in this cause belonging to the defendants situated in Coos County, Oregon, it is therefore ordered and adjudged that said real property be sold as provided by statute and the proceeds thereof be applied upon this judgment.”
    Afterward the property was sold under the judgment and plaintiff moved for a confirmation of the sale, whereupon the defendants appeared specially and filed objections to the confirmation thereof. Upon a hearing the objections were sustained, and the motion for confirmation denied and plaintiff appeals.
    Affirmed. Rehearing Denied.
    For appellant there was a brief over the names of Mr. Edward E. Joehuk and Mr. George Watkins, with an oral argument by Mr. Joehuk.
    
    For respondents there was a brief over the names of Mr. Harry G. Hoy and Mr. I. N. Miller, with an oral argument by Mr. Hoy.
    
   Mr. Justice Benson

delivered the opinion of the court.

We find it necessary to consider but one of the several questions presented, and that is the sufficiency of the affidavit for publication of summons. It will be noted that this affidavit does not anywhere allege that either of the defendants has any property within the State of Oregon. The paragraph quoted in the above statement is the only reference to property that is to be found in the entire document. It is not even alleged that the sheriff has attached property belonging to the defendants, but simply that the officer did attach “certain real property situated in Coos County, Oregon.” This court has held that the affidavit for publication of summons must allege that the defendant has property within the state, and it failing to contain such an averment the court does not acquire any jurisdiction, and any judgment based thereon is void: Colburn v. Barrett, 21 Or. 27 (26 Pac. 1008).

It follows that the judgment must be affirmed, and it is so ordered. Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.  