Jablonski v. Piesik

• Decision Date: 25 May 1915
• Citation: 153 N.W. 274,30 N.D. 543
• Parties: JABLONSKI et al. v. PIESIK et al.
• Court: North Dakota Supreme Court

30 N.D. 543

153 N.W. 274

JABLONSKI et al.

v.PIESIK et al.

Supreme Court of North Dakota.

May 25, 1915.

Syllabus by the Court.

The affidavit for publication of summons is held insufficient and void, and that no service of summons was had upon defendant Piesik, who is held to be a necessary party to the action. The purported judgment rendered without service upon Piesik is a nullity, and is set aside, and the cause remanded for further proceedings according to law.

Appeal from District Court, Dunn County; Crawford, Judge.

Action by Michael Jablonski and another against D. P. Piesik and others. From judgment for plaintiffs, defendants D. P. Piesik and another appeal. Reversed and remanded.T. F. Murtha, of Dickinson, and H. E. Haney, of Belfield, for appellants. T. H. Pugh, of Dickinson, for respondents.

GOSS, J.

The complaint avers that Piesik fraudulently represented himself to be the owner of a section of land, which he agreed to sell plaintiffs for a consideration of $18,580, to be paid by purchase price mortgages upon the land sold and upon an additional 400-acre tract belonging to the plaintiffs; one of said mortgages given in purchase is for $1,500, and is upon said 400-acre tract only; that Piesik did not own or have any right or authority to sell said section, and defendants are defrauded to the amount of said mortgages and notes given in its purchase; that the said $1,500 mortgage has not been assigned, but stands of record in the name of Piesik as owner. The complaint further alleges that an execution has been issued out of district court in an action wherein Coutts, defendant herein, was plaintiff, and defendant Piesik was defendant, and that said notes and mortgage for $1,500 has been levied upon under execution, and the sheriff, codefendant, has possession of said notes and mortgage, and is about to sell the same to enforce collection of said judgment of Coutts against Piesik, and will do so unless enjoined. Judgment is asked that the note and mortgage be adjudged void and be ordered canceled of record, and that Coutts and his codefendant, the sheriff, be directed to deliver up the notes and mortgage for cancellation, and that an injunction pending suit be issued against this transfer. Piesik was attempted to be served by publication of summons. Such service is void. The affidavit for publication is insufficient, and also it was filed after the date of the first one of the six publications made of the summons. The affidavit for publication of summons recites:

“That Piesik is not a resident of this state; that prior to the commencement of this suit the defendant left this state, and upon information and belief affiant alleges that said defendant went to Canada; that the whereabouts of the defendant in Canada is unknown to this affiant or to the plaintiffs of whom affiant has inquired; that the post office address of said defendant is unknown to affiant and to the plaintiffs herein.”

Defendants Coutts and the sheriff challenge the sufficiency of this affidavit as a basis for publication of summons. The statute requires the affidavit to state “the place of defendant's residence if known to the affiant and if not known, stating that fact and further state: (1) That the defendant is not a resident of this state.” This affidavit contains the latter, but not the former, requisite. The affidavit states that the post office address of defendant is unknown. This court has already held in Atwood v. Tucker, 26 N. D. 622, 145 N. W. 587, 51 L. R. A. (N. S.) 597, that such an affidavit is void, and does not comply with the above-quoted statute. An unbroken line of holdings from the territorial times to the present is there cited that such an affidavit is a nullity, and that statutory requirements as to jurisdictional prerequisites on substituted service are strictly construed, and exact and literal compliance with the statute exacted; otherwise no jurisdiction is obtained. The statement in this affidavit concerning the whereabouts of the defendant is not a substantial compliance with the...