Goodale v. Coffee

• Decision Date: 31 July 1893
• Citation: 33 P. 990,24 Or. 346
• Parties: GOODALE et al. v. COFFEE et al.
• Court: Oregon Supreme Court

33 P. 990

24 Or. 346

GOODALE et al. v. COFFEE et al.

Supreme Court of Oregon

July 31, 1893

Appeal from circuit court, Marion county; R.P. Boise, Judge.

Action by Goodale & Wheeler against Coffee, Cragin & Stubbings to foreclose a mechanic's lien, in which there was a decree entered in favor of plaintiffs by default. From an order overruling their motion to set aside the decree, defendants appeal. Affirmed.

The other facts fully appear in the following statement by MOORE J.:

This is a suit to foreclose a lien for material furnished and used in the construction of a dwelling house situate upon lot 10 of block 26 in Highland addition to the city of Salem, Marion county, Or. The facts show that plaintiffs furnished material of the value of $111.35 to the defendants, Coffee, Cragin &amp Stubbings, which was used in the construction of said building, and to secure the payment of said sum the plaintiffs on August 27, 1891, prepared and filed with the county clerk of said county their notice of lien. That on August 29th other liens were filed against the same property as follows: E. E. Snow, $54; the Oregon Land Co., $153.33 Ira Erb, $84.65; and R.M. Wade & Co., $12.66. That on January 26, 1892, plain- tiffs commenced this suit against the defendants, Coffee, Cragin & Stubbings to foreclose the lien, and issued a summons, and placed in the hand of the sheriff of said county for service, who, on the 30th of said month, made a return thereon that he could not, after diligent search and inquiry, find either of said defendants within said county and state. That on the day last mentioned a stipulation was entered into between the plaintiffs and E.E. Snow, the Oregon Land Co., Ira Erb, and R.M. Wade & Co., whereby it was agreed that they might intervene and file answers to plaintiffs' complaint, and that said suit might proceed to final determination with them added as parties thereto; and on said day the said lien holders filed their separate answers, in which their respective claims were set out, but served no summons upon Coffee, Cragin & Stubbings. That on February 6, 1892, the plaintiffs filed an affidavit for an order directing the service of a summons by publication, and on the 8th of said month the judge granted the same. The summons published in pursuance of said order contained the names of the defendants, Coffee, Cragin & Stubbings only, and the first publication thereof appeared in the designated newspaper in the issue of February 12th, and weekly thereafter for six consecutive weeks. That on June 14, 1892, the defendants, Coffee, Cragin & Stubbings, having made default, a decree was entered against them in favor of plaintiffs upon the said service, but no decree was rendered in favor of either of the other lienholders. That on the next day the defendants, Coffee, Cragin & Stubbings, moved to set the decree aside for the reason that the court had no jurisdiction over them, and that no proper or legal service of the summons had ever been made. This motion was overruled by the court, from which the defendants appeal.

Robt. G. Morrow, for appellants.

Tilmon Ford and W.M. Kaiser, for respondents.

MOORE, J., (after stating the facts.)

The appellants contended--First, that the order for the publication of the summons is insufficient; second, the summons did not contain the names of the parties to the suit and, third, the summons does not contain a statement of the relief demanded in the complaint.

Section 56, Hill's Code, so far as it applies to the case at bar, provides that when service of the summons cannot be had as prescribed in the preceding section, it may, by order of the court or judge, be served by publication, when the defendant is not a resident of the state, but has property therein, and cannot, after due diligence, be found within the state, and that fact appears to the satisfaction of said court or judge, and it also appears that a cause of action exists against the defendant, and that the court has jurisdiction of the subject of the action. Plaintiffs' affidavit for such order shows when the complaint was filed and the nature and object of the suit; that the defendants resided out of this state, and could not, after due diligence, be found therein, and the means adopted to ascertain said fact, and to discover their residence and post-office address, which are given; that the suit relates to real property in this state, which is properly described; that they are proper parties thereto, and that copies of the complaint and lien were attached to and made a part thereof. The judge, upon presentation of said affidavit, made an order which, in substance, recites that it satisfactorily appeared therefrom that neither of said defendants could, after due and diligent search and inquiry, be found in the state of Oregon; that they reside out of said state; that a cause of suit exists in favor of the plaintiffs against the said defendants; that personal service of the summons cannot be made upon them, and directed the time and manner of the...