Coughran v. Markley

• Decision Date: 10 July 1901
• Citation: 87 N.W. 2,15 S.D. 37
• Parties: COUGHRAN v. MARKLEY et ux.
• Court: South Dakota Supreme Court

87 N.W. 2

15 S.D. 37

COUGHRAN v. MARKLEY et ux.

Supreme Court of South Dakota

July 10, 1901

Appeal from circuit court, Lincoln county; Joseph W. Jones, Judge.

Action by E. W. Coughran against Michael M. Markley and wife. There was a judgment in favor of the plaintiff, and a motion by defendants to set it aside. From an order denying the motion defendants appeal. Affirmed.

H. H Potter, for appellants. Bailey & Voorhees, for respondent.

HANEY J.

In this action to determine conflicting claims to certain realty, the summons was served by publication, defendants did not appear and judgment was rendered in favor of the plaintiff. Eight years later defendants moved to have the judgment set aside on the ground that it was rendered without jurisdiction, the motion was denied, and they appealed. The order directing service by publication was based upon the following affidavit, to which was attached, as a part thereof, a copy of the complaint: "C. O. Bailey, being first duly sworn says: That he is one of the attorneys for the plaintiff in the above-entitled action, and as such attorney has had charge of the proceedings in the said action on the part of the plaintiff therein. That the defendants above named, Michael M. Markley and Mrs. Michael M. Markley, his wife, cannot, after due diligence, be found within the state of South Dakota. That affiant, acting as attorney aforesaid, has made effort to ascertain the whereabouts and residence of the said defendants as follows: Of B. B. Night, the sheriff of said county; of Thomas Thorson and W. C. Soule, who have resided in said Lincoln county for more than ten years last past; of the plaintiff herein and various persons, who are old residents of said Lincoln county, and were acquainted with said defendants when they resided in said Lincoln county,--and that a summons in said action was duly issued against the said defendants, and was placed in the hands of the sheriff of the said county of Lincoln for service upon the said defendants, and that said summons was returned by the said sheriff with his indorsement thereon that the said defendants could not be found by him within the said county of Lincoln, which said summons, so indorsed as aforesaid, will be filed in the office of the clerk of the circuit court of the said county of Lincoln. That from the inquiries concerning said defendants, and the efforts made by affiant as aforesaid to ascertain the whereabouts and residence of the said defendants as aforesaid, affiant has ascertained that the said defendants removed from the county of Lincoln over five years ago, but that their present place of residence is unknown, and that the place to which they removed is also unknown, and that they are, as deponent is informed and believes, nonresidents of the state of South Dakota. Affiant further says that a cause of action exists against the said defendants, and that they are proper parties to said action, and that said action is an action relating to real property in the said state of South Dakota, all of which will more fully appear from the complaint in said action, a true and correct copy whereof is hereto attached and made a part hereof, and that the relief demanded in the said complaint consists partly in excluding the said defendants from any interest or lien in said real property."

It is contended by defendants that the court erred in denying defendants' motion, for the following reasons: "(1) Because the affidavit on which said order of publication was based did not state sufficient facts to show that diligence had been used to obtain personal service of the summons on the defendants within the state. (2) Because said affidavit did not contain any statement of facts showing that a cause of action existed against defendants."

Where the subject of the action is real or personal property in this state, and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein, and the defendant cannot after due diligence, be found within the state, and that fact appears by affidavit to the satisfaction of the court or a judge thereof, and it in like manner appears that a cause of action exists against the defendant, such court or judge may grant an order that the service be made by the publication of a summons. In case of publication, the court or judge must also direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the post office. Comp. Laws, § 4900. On the theory that the residence of the defendants was unknown, and could not with reasonable diligence be ascertained, copies of the summons and complaint were not directed to be deposited in the post office. Under such circumstances, the probability of actual notice to defendants is so slight that justice demands a strict compliance with the statute. Judgments which exclude persons from any interest in or lien upon land should not be rendered without actual notice, when by the exercise of reasonable diligence actual notice can be given. There should be either actual notice, or an honest and reasonable effort to give it. The statute contemplates, and trial judges should invariably require, that the party who institutes the suit shall in good faith make every reasonable effort to not only ascertain that the defendant cannot be served in the state, but to ascertain his whereabouts, in order that copies of the summons and complaint may reach him through the mails or otherwise. When such an effort has been made, competent evidence of what has been done should be presented to the court or judge by affidavit. Facts within the personal knowledge of the affiant, not conclusions, opinions, or beliefs, should be stated. It is not enough to state the ultimate fact in the language of the statute. Competent evidence should be produced by affidavit alone from which the court or judge can judicially determine whether reasonable diligence has been exercised. Bothell v. Hoellwarth, 10 S.D. 491, 74 N.W. 231; Territory v. Taylor, 1 Dak. 479, 482, Append. The statute on this subject is plain. Compliance with its provisions is not difficult. It is a serious matter to vacate judgments upon which substantial rights have been based in good faith, and it is equally serious to deprive persons of valuable property without notice. In every case involving the validity of orders for publication which has reached this court, all doubt might have been avoided by careful...