Gilmore v. Lampman

• Decision Date: 20 June 1902
• Citation: 86 Minn. 493,90 N.W. 1113
• Parties: GILMORE et al. v. LAMPMAN et al.
• Court: Minnesota Supreme Court

86 Minn. 493

90 N.W. 1113

GILMORE et al.

v.LAMPMAN et al.

Supreme Court of Minnesota.

June 20, 1902.

Appeal from district court, Hennepin county; J. F. McGee, Judge.

Action by Sadie K. Gilmore and J. Kyle Gilmore against Adelaide B. Lampman and others. From an order setting aside service of summons, plaintiffs appeal. Affirmed.

Syllabus by the Court

1. Constructive service of process is purely of statutory creation, and in derogation of the common law, and such statutes must be strictly construed.

2. The affidavit for publication required by section 5204, Gen. St. 1894, is jurisdictional, and must contain and state all of the statutory requirements. Such an affidavit considered, and held, that it does not state that the defendant had property in the state of Minnesota, nor that the subject of the action was real property within the state of Minnesota.

3. Reference cannot be made to the complaint on file in the action for the purpose of supplying material facts omitted from the affidavit. Arthur G. Morey, for appellants.

Wilson & Van Derlip, for respondents.

LEWIS, J.

In an action to foreclose a mechanic's lien, service by publication was attempted to be made as to the respondent Adelaide B. Lampman, and the following affidavit was executed on June 27, and filed on July 18, 1901:

‘State of Minnesota, County of Hennepin-ss.: A. G. Morey, being first duly sworn, deposes and says: That he is the attorney for the plaintiff in the above-entitled action; that the above action was brought for the purpose of foreclosing a mechanic's lien, and that Adelaide B. Lampman, one of the defendants, has property in this city, and is the owner of property described in the complaint; that he believes that the said defendant Adelaide B. Lampman is not a resident of the state of Minnesota, but that she is a resident of Newark, Essex county, New Jersey. Affiant further says that this affidavit is made for the purpose of obtaining an order of this court that the service of the summons in this action may be made upon Adelaide B. Lampman, one of the said defendants by publication. Arthur G. Morey.

‘Subscribed and sworn to before me this 27th day of June, 1901. R. C. Wyvell, Notary Public, Hennepin County, Minn. [Notarial Seal.]’

Subsequently, on the 19th day of July, another affidavit was filed, stating that on that day a true copy of the summons in the action was deposited in the post office at Minneapolis, Minn., inclosed in an envelope duly stamped and addressed to Adelaide B. Lampman at Newark, Essex county, N. J. The first publication of the summons was on Saturday, July 20th. The complaint was verified on the 9th and filed on the 18th of July, 1901, and stated that the respondent was the owner of real estate (describing it) in the city of Minneapolis, Hennepin county, Minn. On February 11, 1902, respondent appeared specially by counsel, and moved the court for an order to set aside the service of the summons on the ground that the same was void. The motion was granted, and plaintiffs appealed.

The only question before the court is the sufficiency of the affidavits for publication. Appellants complied with the provision of section 5204, Gen. St. 1894, unless, in the first affidavit referred to, there was a failure to state that respondent had property in the state of Minnesota, and that the court had jurisdiction of the subject of the action, or that the subject of the action was real property within the state. It will be conceded that the second affidavit was sufficient to cover the omission in the first as to the posting of the summons. Appellants contend for the sufficiency of the affidavit upon the ground that in respect to the description of the property owned by respondent in the state of...