KANSAS OFFICE of
  REVISOR of STATUTES

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60-307. Service by publication. (a) When permissible. Service may be made by publication in any of the following cases:

(1) In an action to obtain a divorce, maintenance or an annulment of a marriage if the defendant resides outside this state or if the party with due diligence is unable to serve summons on the defendant within this state;

(2) in an action brought against a person who is a nonresident of this state or a foreign corporation having in this state property or debts owing to the person or foreign corporation sought to be taken by a provisional remedy or to be appropriated in any way;

(3) in an action, in which the defendant is a nonresident of this state or a foreign corporation or if the party with due diligence is unable to serve summons on the defendant in this state:

(A) Which relates to or the subject of which is real or personal property in this state, if any defendant has or claims a lien or interest, vested or contingent, in the property;

(B) in which the relief demanded consists wholly or partly in excluding the defendant from any interest in the property;

(C) for partition; or

(D) for foreclosure of a lien;

(4) in an action in which the defendant, being a resident of this state, has departed from this state or from the county of the defendant's residence with the intent to delay or defraud creditors or to avoid the service of a summons, or hides in the state or county with that intent, or in an action against a domestic corporation that has not been legally dissolved, if the officers of the corporation have departed from this state or cannot be found; and

(5) in an action specified in this subsection, on any of the following who are made defendants:

(A) Unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of a person alleged to be deceased;

(B) unknown spouse of a defendant;

(C) unknown officers, successors, trustees, creditor* and assigns of a defendant that is an existing, dissolved or dormant corporation;

(D) unknown executors, administrators, devisees, trustees, creditors, successors and assigns of a defendant that is or was in partnership; and

(E) unknown guardians, conservators and trustees of a defendant that is a minor or is under any legal disability.

(b) Construction and effect. The provisions of this section are separate and permissive methods of obtaining service. If a defendant served under this section does not appear, judgment may be rendered affecting the property, res or status within the jurisdiction of the court as to the defendant, but judgment may not be rendered against the defendant personally.

(c) Affidavit or declaration for service by publication. Before service by publication under this section can be made, a party or the party's attorney must file an affidavit or a declaration pursuant to K.S.A. 53-601, and amendments thereto, stating all of the following facts that apply:

(1) The residences of all named defendants sought to be served, if known, and the names of all defendants whose residences are unknown after reasonable effort to ascertain them and the specific efforts made to ascertain the residence;

(2) the affiant or declarant has made a reasonable but unsuccessful effort to ascertain the names and residence of any defendants sought to be served as unknown parties under subsection (a)(5) and the specific efforts made to ascertain the names and residences;

(3) the party seeking service by publication is unable to obtain service of summons on the defendants in this state; and

(4) the case is one of those mentioned in subsections (a)(1) through (a)(4).

The form of the affidavit or declaration is sufficient if in substantial compliance with the form set forth by the judicial council. When the affidavit or declaration is filed, service may proceed by publication.

(d) Publication; contents and form of notice; actions involving property. (1) Where to publish notice. The notice must be published once a week for three consecutive weeks in a newspaper published in the county where the petition is filed and that is authorized by law to publish legal notices. If there is no newspaper published in the county, the notice may be published in a newspaper having general circulation in the county.

(2) Contents of notice. The notice must name any defendant to be served and notify the defendant and all other persons who are or may be concerned that:

(A) The defendant has been sued in a named court;

(B) the defendant must answer the petition or other pleading or otherwise defend, on or before a specified date not less than 41 days after the date the notice is first published; and

(C) if the defendant does not answer or otherwise defend, the petition or other pleading will be taken as true, and judgment, the nature of which must be stated, will be rendered accordingly.

(3) Form of notice. The notice is sufficient if in substantial compliance with the form set forth by the judicial council.

(4) Property description. When the action affects property, the notice need not expressly describe the property unless the description is otherwise required by law, but the property may be identified by reference to the pleading.

(e) Mailing copy of notice. The party seeking service by publication must, within seven days after the first publication, mail a copy of the publication notice to each defendant whose address is stated in the affidavit or declaration for service by publication.

(f) When service complete. Service by publication is complete when it has been made in the manner and for the time prescribed in subsections (d) and (e). The service must be proved under subsection (c) of K.S.A. 60-312, and amendments thereto. No judgment by default may be entered on the service until proof of service is made, approved by the court and filed.

History: L. 1963, ch. 303, 60-307; L. 1965, ch. 355, § 1; L. 1970, ch. 232, § 2; L. 1982, ch. 152, § 22; L. 1990, ch. 202, § 8; L. 1994, ch. 68, § 3; L. 2005, ch. 101, § 11; L. 2010, ch. 135, § 152; July 1.

Source or prior law:

(a). G.S. 1868, ch. 80, § 72; L. 1889, ch. 107, § 1; L. 1903, ch. 385, § 1; L. 1903, ch. 386, § 1; L. 1905, ch. 326, § 1; L. 1907, ch. 257, § 1; L. 1909, ch. 182, § 78; R.S. 1923, 60-2525; L. 1951, ch. 349, § 1; L. 1957, ch. 326, § 1.

(d). G.S. 1868, ch. 80, § 73; L. 1889, ch. 107, § 2; L. 1891, ch. 79, § 1; L. 1903, ch. 385, § 2; L. 1903, ch. 386, § 1; L. 1905, ch. 326, § 2; L. 1907, ch. 257, §§ 2, 3, 4; L. 1909, ch. 182, § 79; R.S. 1923, 60-2526; L. 1951, ch. 349, § 2; L. 1957, ch. 326, § 2.

(e). G.S. 1868, ch. 80, § 74; L. 1905, ch. 326, § 2; L. 1907, ch. 257, § 3; L. 1909, ch. 182, § 80; R.S. 1923, 60-2527; L. 1951, ch. 349, § 3; L. 1957, ch. 326, § 3.

(g). G.S. 1868, ch. 80, § 75; L. 1909, ch. 182, § 81; R.S. 1923, 60-2528.

Revisor's Note:

Service of process by publication under code of civil procedure for limited actions to be made in accordance with applicable provisions of this section, see 61-3003.

* The word "creditor" should have been "creditors" instead.

Cross References to Related Sections:

Opening default judgment rendered on publication service, when, see 60-309.

Time to answer after service by mail, see 60-212.

Extension of time where service by mail, see 60-206.

Qualifications of newspapers publishing legal notices, see 64-101.

Weekly newspaper, when publication made, see 64-102.

Lis pendens, see 60-2201.

Law Review and Bar Journal References:

Divorce and alimony laws, Dan Hopson, Jr., 12 K.L.R. 27, 32 (1963).

Comment on validity of power of sale, Charles R. Wilson, 16 K.L.R. 611, 617, 618 (1968).

Case note discussing insufficient notice by publication, 16 K.L.R. 623, 625 (1968).

"Titles—Insufficient Notice in a Tax Foreclosure Action," Robert Looney, 19 K.L.R. 160, 162 (1970).

"Domestic Relations: The Role of Long Arm Statutes," Linda D. Henry, 10 W.L.J. 487, 490 (1971).

Survey of civil procedure, Elizabeth R. Herbert, 15 W.L.J. 315, 316 (1976).

"Civil Procedure: Notice Requirements, Due Process, and Statutes of Limitations," Vivian W. Wiberg, 16 W.L.J. 170, 175 (1976).

"Tolling the Statute of Limitations: Restricted by Enlarged Personal Jurisdiction," L. Stephen Garlow, 18 W.L.J. 565, 570 (1979).

"Survey of Kansas Law: Family Law," Camilla Klein Haviland, 27 K.L.R. 241, 252 (1979).

"Contested Estate Matters After Court Unification," Calvin J. Karlin, 48 J.B.A.K. 97, 101 (1979).

"The Uniform Parentage Act: An Opportunity to Extend Equal Protection to All Kansas Children," Dwight A. Corrin, 19 W.L.J. 110, 121 (1979).

"Municipal Courts: A Thought on Notice Procedures," James M. Sheeley, 5 J.K.T.L.A. No. 6, 24, 26 (1982).

"Notice by Publication—Modern Standards of Due Process Not Retroactively Applied," Alan Weber Rosenak, 24 W.L.J. 639 (1985).

"Service of Process by Certified Mail," Robert C. Casad, 59 J.K.B.A. No. 10, 25 (1990).

"Termination of Parental Rights and Service of Process: Follow the Rules or Suffer the Consequences," Robert M. Pitkin, J.K.T.L.A. Vol. XVI, No. 5, 7 (1993).

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-2525 through 60-2528 and the 1961 Supp. thereto.

1. Service of summons by publication valid in action for foreclosure of mortgage. American Home Life Ins. Co. v. Heide, 199 Kan. 652, 654, 655, 656, 433 P.2d 454.

2. Cited in construing oil and gas lien law (K.S.A. 55-207 through 55-210). Mountain Iron & Supply Co. v. Branum, 200 Kan. 38, 45, 434 P.2d 1015.

3. Subsections (d) and (f) mentioned with respect to service of process in tax lien foreclosure suits. Pierce v. Board of County Commissioners, 200 Kan. 74, 85, 434 P.2d 858.

4. Service by publication held sufficient to satisfy constitutional requirements of due process and equal protection of laws; description sufficient. Board of County Commissioners v. Alldritt, 217 Kan. 331, 333, 334, 536 P.2d 1377.

5. Divorce action against nonresident; service by mail, jurisdiction in rem not in personam. Lillis v. Lillis, 1 Kan. App. 2d 164, 165, 563 P.2d 492.

6. Provisions of section mandatory; error to dismiss motion to set aside judgment granting tax foreclosure. Board of County Commissioners v. Knight, 2 Kan. App. 2d 74, 77, 78, 574 P.2d 575.

7. Constructive service would not support subject matter jurisdiction for entry of personal judgment. Davila v. Vanderberg, 4 Kan. App. 2d 586, 587, 588, 608 P.2d 1388.

8. Service upon resident agent of dissolved corporation during three year wind-up period constitutes valid service on corporation. Vogel v. Missouri Valley Steel, Inc., 229 Kan. 492, 493, 625 P.2d 1123.

9. Bank's application of funds in debtor's account to antecedent debt should not be considered transaction in ordinary course of business to defeat perfected security interest (dissenting opinion). Tuloka Affiliates, Inc. v. Security State Bank, 229 Kan. 544, 552, 627 P.2d 816.

10. Severance of parental rights invalid for lack of adequate notice and because relief granted by default was not requested in pleadings. Sweetser v. Sweetser, 7 Kan. App. 2d 463, 464, 643 P.2d 1150 (1982).

11. Cited in construing juvenile code. In re Woodard, 231 Kan. 544, 553, 646 P.2d 1105 (1982).

12. Publication service alone insufficient notice to satisfy requirements hereof where names and addresses of adverse parties known. Federal Nat'l Mtg. Ass'n v. Beard, 8 Kan. App. 2d 371, 372, 373, 374, 659 P.2d 232 (1983).

13. Cited; improper to allow retrospective application of procedural statute (K.S.A. 60-203) where vested defense exists prior to effective date thereof. Jackson v. American Best Freight System, Inc., 238 Kan. 322, 323, 325, 709 P.2d 983 (1985).

14. Service by certified mail on party allegedly in contempt insufficient to confer jurisdiction (K.S.A. 20-1204a); subsequent proceedings also void. Sramek v. Sramek, 17 Kan. App. 2d 573, 574, 840 P.2d 553 (1992).

15. Service by publication when defendant's whereabouts were unknown or not reasonably ascertainable held constitutional. Siefkes v. Nichols, 788 F. Supp. 477, 478, 479, 480, 481 (1992).

16. Publication service does not warrant a personal judgment against defendant as it provides in rem jurisdiction only. Medina v. Amer. Fam. Mut. Ins. Co., 29 Kan. App. 2d 805, 32 P.3d 205 (2001).


 



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