Kirby v. Agra Gin Company

1 On the 25th of March, 1944, the Agra Gin Company, Inc., filed suit against Mary K. Kirby, Ellis Kirby and the unknown heirs, executors, administrators and assigns, both immediate and remote of L.E. Kirby, deceased, to have the title to an interest in land conveyed to plaintiffs. Parties will be referred to as in the trial court. The plaintiff sought to obtain service on the defendants by publication. An affidavit to obtain service by publication was filed which affidavit was signed by the attorney for the plaintiff but was never sworn to by this lawyer, although there was a jurat attached to be sworn to before the deputy Court Clerk. The affidavit of mailing of petition and notice was made. There was a proper proof of publication and notice by publication. An attorney was appointed for the defendants under the Soldiers and Sailors Civil Relief Act, 50 U.S.C.A. Appendix, § 501 et seq., on November 18, 1944, and an answer was filed by him for the defendants. On November 25, 1944, a default judgment was taken against the defendants by the plaintiff ordering the defendants to convey the land in question to plaintiff and if they did not do so the sheriff of Lincoln County, Oklahoma, was to do so.