
    Claypoole v. Houston and others.
    July Term, 1873.
    1. Beforming Deed: Jurisdiction: District Court. The district court has jurisdiction to correct and reform an administrator’s deed which, through a mutual mistake of all the parties, was made to read “seventy degrees and thirty-nine minutes,” when it was intended and should have read “seven degrees and thirty-nine minutes,” so as to make said deed conform to the intention, agreement, and understanding of all the parties.
    
    2. Constructive Service: Insufficient Affidavit. It is error for the district court to appoint a guardian ad litem for a minor, and render judgment against such minor, where said minor makes no appearance in the case, and where the only service of summons upon him was by publication upon an insufficient affidavit.
    
    3. -. Where the affidavit for constructive service upon a non-resident defendant, after alleging that he “is a non-resident of the state of Kansas, and that service of a summons cannot be made upon him within the state-of Kansas,” states the additional ground in these words, “And that the-above-entitled cause is one oí those mentioned in section 72 of the Code of Civil Procedure of the state of Kansas, and that said action relates to real estate in this state,” such affidavit is insufficient, and a service made thereunder is voidable. The affidavit should show, by a sufficient statement of facts, the existence of a cause of action in favor of the plaintiff and against the defendant, and what that cause of action is, in order that the court may see, from such statement of facts, that the action is one of those mentioned in section 72 of the Code.
    Error from Leavenworth district court.
    The action below was brought by Levi Houston as plaintiff, against Marcus D. Claypoole, Thomas Plowman, and Sarah E. Plowman, and Merrit H. Insley, as administrator of the estate of Jeremiah H. Claypoole, deceased, as defendants, alleging among other matters that Insley, as such administrator, had attempted to execute a certain statutory power, that of making a deed for lands of a decedent sold, as he claimed, under order of a probate court, but had failed to do so, and wanted the aid of said district court, as a court of chancery, to correct an alleged mistake in the administrator’s deed. Marcus D. Claypoole, a minor son and heir of said decedent, ivas a non-resident of the state; and, being a necessary party, an affidavit was made, and publication order issued and published, for constructive service upon him. The district court at the November term, 1871, gave judgment against all the defendants, reforming and correcting said deed, and defendant Claypoole brings the case here on error.
    
      Clough & Wheat, for plaintiff in error.
    The district court had not jurisdiction to render such judgment, and erred in doing so. Gridley v. Phillips, 5 Kan. *349; 1 Story, Eq. § 177.
    Said judgment was and is also void, as against plaintiff in error,, for want of jurisdiction of, or over the person of, plaintiff in error.. The only summons issued in the action was not served on plaintiff im error. The affidavit to obtain constructive service was not sufficient to-authorize service by publication for several reasons: First, because it, does not, as required by section 73 of the Code, show that the case was one of those mentioned in section 72 thereof. To show it was such a case, it should have been stated in the affidavit what the ease ■was, and if from such statement it appeared that the case was one of those mentioned in section 72, then it would have been thereby shown it was such a ease; but merely to state that it was such a case is not showing it to be so. Lewis v. Hancock, Sneed, (Ky.) 151. The statement in the affidavit “that said action relates to real estate in this state” is not sufficient to show that the action was one of those mentioned in said section 72, because that would not make the showing required without also showing in the affidavit that Marcus £>. Claypoole had or claimed a lien or interest, actual or contingent, in the land, a description of which should have been therein given or referred to. If from any cause sai.d affidavit is defective, then any -constructive service was void, and the court had not jurisdiction of ¡the person of plaintiff in error. See opinion in Shields v. Miller, 9 Nam *398.
    The court could not lawfully appoint a guardian for the suit for plaintiff in error until it bad, in the manner and as Required by law, obtained jurisdiction of his person. See section 33, Code; and Flowers v. Foreman, 23 How. 133, 145; Wade •v. Bridewell, 38 Miss. 420; Guy v. Pierson, 21 Ind. 19; Johnson v. ■Johnson, 30 111. 215, 223; Tappen v. Norman, 11 Ves. .563; Grant w. Van Schoonhoven, 9 Paige, 255; Collard’s Heirs v. Groom, 2 J. J. Marsh. 488. And therefore the appearance and answer for said plaintiff in error, made by the guardian appointed by the court for ¿hat suit, did not bring him before that court.
    
      Stillings & Fenlon, for defendants in error.
    That the district court might well give the aid it did, we refer to 1 Story, Eq. §§ 169, 170. The affidavit for constructive service complies with the statute. Courts have uniformly held an affidavit for attachment in the language of the statute sufficient. The record shows a finding of the court, and that proof of publication of notice ¡to Claypoole was made.
    
      
       Correction of mistake in description of land, Earnshaw v. Crout, 23 Kan. 560: mutual mistake must be clearly shown, Conaway v. Gore, 24 Kan. 389; power of court to correct mistake, Bank v. Wentworth, 28 Kan. 183; sheriff’s deed, Roberts v. Chamberlain, 30 Kan. 677; S. C. 2 Pac. Rep. 834; Rice v. Poynter, 15 Kan. 263; equity. Conaway v. Gore, 21 Kan. 725; names in instrument, Miller v. Davis, 10 Kan. *341.
    
    
      
       See Ogden v. Walters, ante, *282, and note.
    
   Valentine, J.

There are only two questions involved in this case: First. Has the district court jurisdiction to correct and reform an administrator’s deed which, through a mutual mistake of all the parties, was made to read “seventy degrees and thirty-nine minutes, ••■(70°, 39/,) ” when it was intended and should have read “seven decrees and thirty-nine minutes, (7°,-39/,)” so as to make said deed ■ conform to the intention, agreement, and understanding of all the ¡■parties? Second. Is a service of summons by publication, against ■a minor over fourteen years of age, obtained upon the following affi- • davit, sufficient to authorize the court to appoint a guardian ad litem Jfor the minor, and then, after the guardian ad litem has answered for .the minor by filing a general denial to the plaintiff’s petition, pro- ■ -seed to hear evidence and render judgment in favor of the plaintiff and against the minor? Said affidavit reads as follows:

“ [Title and Venue.] L. M. Goddard, being first duly sworn, says "■that he is one of the attorneys for the plaintiff in the cause above en- '• titled; and that the above-named Marcus D. Claypoole is a non-resident of the state of Kansas; and that the service of a summons cannot be made upon him within *the state of Kansas; that the above-entitled cause is one of those mentioned in section \72 of the Code of Civil Procedure of the state of Kansas, and that ¡said action relates to real estate in this state. [Signature and Jurat.]”

We answer the first question in the affirmative and the second in ‘4he negative. We do not think that such a service as the foregoing is void. It is only voidable. Such a service could not be attacked collaterally, but it may be attacked directly, or by petition in error, as in this case. A service of summons on the return-day is irregular and voidable. Armstrong v. Grant, 7 Kan. *285, *291, *292; Dutton v. Hobson, 7 Kan. *196, *198. • But such a service will be held valid when attacked collaterally, (Armstrong v. Grant, supra;) but insufficient when attacked by a petition in error, (Dutton v. Hobson, supra.) The said minor never made any appearance in the court below, except by his said guardian ad litem, and he never gave his said guardian ad litem-&Rj authority to appear for him; hence said minor has never waived any of the errors committed by the court below. We think it was error for the court below to appoint said guardian ad litem, and to render said judgment. The said ■ affidavit does not sufficiently show-, by fact stated, that this case was one of those mentioned in section 72 of the Civil Code. Gen. St. 643, §§ 72, 73; Pindar v. Black, 4 How. Pr. 95; Slocum v. Slocum, 17 Wis. 150; Rankin v. Adams, 18 Wis. 292.

For the error above stated the judgment of the court below is reversed, and cause remanded for further proceedings.

(All the justices concurring.)  