concurrence">Rose, J.

I concur in the affirmance.

Sedgwick, J.,

dissenting.

The majority opinion makes this case depend upon one supposed defect in the record. An affidavit for publication of summons was made by the plaintiff’s attorney — yes, two or three of them were made by the plaintiff’s attorney. They stated the facts that would justify such service, and there is no question now but that the facts existed at that time as stated in those affidavits. The statutory ground for service by publication is shown beyond question to have existed at the time, and the question decided is whether the plaintiff also made an affidavit himself in the case. If he did, *36the sale is regular in all respects. If he did not, we have the technical point that the facts that everybody now knows existed were established by the attorney’s •affidavit and not hy that of the plaintiff himself. The case was before this court and was decided upon a. demurrer to the .petition, 93 Neb. 158. The petition was held to state a cause of action. This was because the petition showed that the affidavit for publication was defective. There is now no donbt but that several defective affidavits were filed. When, the case went back it was alleged that there was a proper affidavit filed which had been lost from the files, and that appears to be the only question determined. It was not presented at the former hearing. The judgment of the trial court recites that there was an affidavit of the plaintiff filed and finds it sufficient and renders a judgment accordingly. When such a record is attacked, the burden is not upon the defendant to show that the judgment is regular, or that the court had jurisdiction, but the burden is upon the plaintiff who attacks the record to show clearly that there was a want of jurisdiction. And when this foreclosure title has stood for 10 or 15 years and the land has been bought and sold by innocent parties relying upon this title, the burden of showing that the court was without jurisdiction upon some technical matter is rightly placed by the law upon the party who attempts to set aside the judgment of the court and he must make a clear and complete proof. The majority opinion is entirely predicated upon the alleged weakness of the evidence tending to prove that the affidavit of Welpton, the plaintiff in that case, was in fact before the court when the court so found. The evidence of several witnesses is quoted, including the evidence of the deputy clerk who kept the record — that some one took the files out of the office during that time whose name she did not remember, and that when the files were returned some of them were missing, but just how many or what was missing she could not say, and *37that she made a memorandum “files missing,” and put it with the papers in the ease. And some of the evidence of the clerk is quoted as follows: “I cannot say that I have any distinct recollection of the filing of any particular paper in said case, but it runs in my mind that Welpton’s affidavit was filed, and that this was one of the missing papers referred to in the memorandum 'made by my sister. I must say that my memory is weak as to this.” Similar evidence of other witnesses is quoted. In connection with the evidence of each, a suggestion like the following is made in the opinion: “His testimony was given 13 years after he ceased to be the clerk. If it appeared to be weak to himself, then it cannot be strong to us.” So it is assumed through the whole opinion that, when a plaintiff attacks the finding and judgment of a court of general jurisdiction 10 or 15 years after it is entered, the burden is upon the defendant to prove that the finding and judgment assailed are true and valid. Not only is the burden placed upon the wrong party, but it is assumed that his evidence must be clear and positive and directly to the point considered. It seems to me that this cannot be the law. There is so much evidence that some of the papers were taken from the files before the time arrived for making a complete record under the. statute (Rev. St. 1913, sec. 8013), and that' the affidavit of the plaintiff himself was before the court when the finding to that effect was made, that, even if it devolved upon the defendant to make such proof when the findings and judgment were attacked by the plaintiff, this decision is'wrong, especially when it is remembered that the plaintiff has offered no evidence in support of the allegations of his petition, except that the files have not been preserved complete for more than a dozen years, and that the complete record does not contain the affidavit in question. It is admitted that the fact existed that the affidavit of the plaintiff should have shown, and that the court found that the plaintiff’s affidavit was upon file at the time of *38the decision; and one who alleges that that is not true has no presumptions in his favor, but all presumptions are against him. The second paragraph of the syllabus might be considered as indicating that the court intends to hold that the burden of proof is upon the party who seeks to uphold the judgment of the court. Two decisions of this court are there cited as supporting the proposition of this paragraph of the syllabus. One of them, Duval v. Johnson, 90 Neb. 503, stated that “A recital in the judgment that ‘the court finds that due and legal notice of the filing and pendency of this action was given the defendants’ will not supply the lack of the facts necessary to confer jurisdiction,” but does not in that connection state how “the lack of facts” should be made to appear. The case is not at all an authority for the proposition that the burden of proof is upon the party who seeks to uphold the judgment. The finding of the trial court that notice of the “pendency of this action was given the defendants” is not strictly a finding of fact alone, but is also a conclusion of law, and it is not a finding that^any specific fact exists. It appears from the opinion in that case that there was no record that any notice whatever was published and that there was affirmative evidence that no such notice was published and.no evidence whatever that it was. The case does not determine that the burden of proof was upon the party attempting to support, the judgment. It simply determines that when there is no record furnishing any such proof, and there is proof to the contrary, the jurisdiction of the court is not sustained by the record. The opinion in the case cited says that this court has held that “the record must affirmatively show that the statute has been complied with,” and that “this doctrine has been severely criticised by text-writers. * * * The weight of authority in other states seems to support a contrary view.” Clearly this language that the record must affirmatively show-that the statute has been complied with is not intended *39in that decision as it is applied here in this case. In the -case at bar the court specifically found that the affidavit of the plaintiff was filed, and this court has frequently held that the files of the newspaper in which the notice was published and other extrinsic evidence may be introduced to show that the notice was in fact published. The case is authority for the proposition that the party who attacks the judgment has the burden of showing that the court that rendered it was without jurisdiction. This burden he may sustain by introducing the record which fails to recite that any notice was actually published, or fails to recite some other jurisdictional fact, and this condition of the record with affirmative oral testimony tending to prove that no such notice was published may be sufficient to sustain that burden and defeat the judgment. In McKenna v. Pleasant, 96 Neb. 581, the other case cited in support of the second paragraph of the syllabus of the majority 'opinion, the rule is stated to be: “When the complete record of a forclosure of a real estate mortgage fails to show that an affidavit for publication of the summons was filed in the case, and no such affidavit appears in the files, it must be found that no such affidavit was filed, in the absence of any affirmative proof of that fact.” That is, if there is no record that any such affidavit was filed and no “affirmative proof,” this would be sufficient prima facie proof that no affidavit was filed. But when, as it appears in the case at bar, the absence of such affidavit from the complete record is explained and accounted for, and there is other evidence tending to show that such an affidavit was in .fact filed, and there is an express finding of the court to that effect, clearly the attack upon the judgment has not been sustained. If we say that after many years the fact that the affidavit is not still in the files is so conclusive that the findings and judgment are wrong, we will, I think, render invalid a majority of the foreclosure titles in the western half of the state, if not a *40larger proportion of them — a' most unfortunate thing to do. It is suggested that when lands are sold for taxes there ought to be a liberal right of redemption. But there is also another side to be considered. If titles under foreclosure sales, for taxes are rendered absolutely uncertain, the payment of real estate taxes cannot be enforced. Such titles are very common throughout Nebraska, and especially in the western part of the state. Twenty-odd years ago, when these taxes in this case became due, it was quite a common idea that the lands were not worth paying' taxes upon, and so they became transferred to those that were willing to pay the taxes through foreclosure sales. One who buys land at a foreclosure sale takes his chances whether the value of the land goes up or down. If the value goes down or remains stationary, there is seldom any effort made to set aside the sale or to redeem the land. But if the land advances rapidly in value, then there will always be found some one to contest the proceedings if there is any possible hope of success in doing so. I suppose it very rarely happened that the clerk of the court was a lawyer or knew how to make up a record, and the judges' themselves were not as particular to see that the clerk made up the record technically correct in all respects as perhaps the judges are now. I suppose that, among all of the foreclosures by tax sales in Nebraska, not more than one in ten can be found to stand the test of this decision.

Bean, J7, concurs in this dissent.

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