Iowa State Sav. Bank v. Jacobson
| Citation | 66 N.W. 453,8 S.D. 292 |
| Parties | IOWA STATE SAV. BANK v. JACOBSON. |
| Decision Date | 26 February 1896 |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Leave to file a supplemental abstract for the sole purpose of presenting a corrected printer's affidavit of publication, not before the trial court, but filed therein nunc pro tunc, long after an appeal had been perfected, will not be allowed.
2. In an action against a nonresident defendant having property within the state, an order for the publication of the summons may be granted before said property has been actually seized under attachment, and upon an affidavit which contains a statement of all the jurisdictional facts, together with evidence relating thereto sufficient to convince the court of the existence of a case authorizing a substituted service under the statute.
3. A judgment in a suit aided by attachment need not direct a sale of the property in satisfaction thereof, as the law explicitly imposes that duty upon the attaching officer.
4. Proof that a notice is published in a weekly newspaper for seven successive issues commencing on December 25, 1891, and concluding on February 5, 1892, is sufficient to show a publication thereof "once in each week for six successive weeks," as required by statute.
Appeal from circuit court, Davison county; D. Haney, Judge.
Action by the Iowa State Savings Bank against Jacob Jacobson. There was a judgment for plaintiff, and from an order denying a motion to vacate the same defendant appeals. Affirmed.
A. E Hitchcock, for appellant. Palmer, Preston & Rogde, for respondent.
This appeal is by the defendant from an order overruling a motion to vacate and set aside a judgment rendered in the above-entitled action upon his promissory note, together with all proceedings had therein before and since said judgment was entered. The substantive facts and proceedings, briefly stated, are as follows: A summons was issued by respondent's attorney, and placed in the hands of the sheriff with the direction that the same be personally served. In his return, dated December 23, 1891, said officer stated that he could not find the defendant in this state and that he verily believed him to be a resident of Salem Or. On the same day respondent's counsel presented his affidavit and verified complaint to the trial court, and obtained an order directing a substituted service of the summons by publication, which was thereupon filed in circuit court, together with an affidavit and bond for an attachment, upon which a writ of attachment issued on said 23d day of December, 1891, and by virtue of which the real property in controversy was levied upon and seized by the sheriff five days thereafter. On the 24th day of December, 1891, pursuant to the court's order above mentioned, copies of the summons and complaint were addressed and mailed as required by statute to the appellant, Jacobson, at Salem, Or., and the summons was published in the Mitchell Capital for the first time on the following day, as shown by the affidavit of the business manager of said newspaper. On the 18th day of April, 1892, a default judgment in respondent's favor against appellant for the full amount claimed was rendered and docketed in circuit court, and a special execution was issued, directing the sale of the attached real property in satisfaction thereof, which was accordingly sold, pursuant to a published notice of sale, on the 28th day of May, 1892, and the usual certificate of sale was executed and delivered to the purchaser thereof.
Before proceeding to an examination of the subjects presented by appellant's assignment of errors, we will dispose of the following question of practice, to which our attention is directed by respondent's amended abstract and appellant's objections thereto: More than five months after this appeal was perfected, and upon application of counsel for respondent to the trial court, an order was granted, by which respondent was allowed to file, nunc pro tunc, a corrected affidavit of the publication of the summons, and also a corrected affidavit of the publication of the notice of sheriff's sale, both of which were filed as of the date of the original affidavits, and by said order were made a part of the judgment roll herein. In our opinion appellant is entitled to have the order appealed from considered upon the record before the trial court when the same was entered. Upon the hearing of the motion to vacate and set aside the proceedings, when the attention of respondent was first directed to the alleged imperfect affidavits, he appeared to be well satisfied with their form and substance, and it is now too late, after an appeal has been taken, to file supplemental or substituted affidavits for the consideration of this court. Ladd v. Couzins, 35 Mo. 514; Clelland v. People, 4 Colo. 244; Kirby v. Superior Court, 68 Cal. 604, 10 P. 119. It will be observed that the order for the service of the summons by publication was granted by the court on the day of the issuance of the attachment, and that the summons was published three days before the sheriff actually levied upon the real estate of appellant by virtue of the warrant of attachment. Appellant's contention is that the court was without power to order the summons to be published, because his real property had not, prior to the granting of said order, been seized under the warrant of attachment. Section 4900 of the Compiled Laws provides that: "Where the person on whom the service of the summons is to be made 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 in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this state, such court or judge may grant an order that the service be made by the publication of a summons in either of the following...
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