Lauinger v. Fleischer-Schmid Corporation, Civ. No. 3382.

• Decision Date: 15 May 1957
• Docket Number: Civ. No. 3382.
• Citation: 151 F. Supp. 376
• Parties: Mike LAUINGER, Plaintiff, v. FLEISCHER-SCHMID CORPORATION, a foreign corporation, and Tractor Supply Company, a foreign corporation, Defendants.
• Court: U.S. District Court — District of South Dakota

151 F. Supp. 376

Mike LAUINGER, Plaintiff, v. FLEISCHER-SCHMID CORPORATION, a foreign corporation, and Tractor Supply Company, a foreign corporation, Defendants.

Civ. No. 3382.

United States District Court D. North Dakota Northwestern Division.

May 15, 1957.

Conrad J. Ziegler, of Friederich & Ziegler, Rugby, N. D., for plaintiff, Mike Lauinger.

Robert W. Palda, of Palda, Palda & Peterson, Minot, N. D., for defendant, Fleischer-Schmid Corp.

REGISTER, Chief Judge.

Fleischer-Schmid Corporation, one of the defendants in the above-entitled action, is a foreign corporation, existing under and by virtue of the laws of the State of Nebraska, and has its office and principal place of business in Columbus, Nebraska. Said defendant corporation has entered its special appearance in this action for the purpose of seeking a dismissal of the action on the ground and for the reason that this Court lacks jurisdiction over the person of said defendant. The motion was argued orally before this Court, and thereafter written briefs were duly filed on behalf of both parties.

This action was originally brought in the District Court, Second Judicial District, County of Pierce, State of North Dakota. It was subsequently, by proper petition of the co-defendant Tractor Supply Company, a foreign corporation, removed to this Court. Service upon the defendant Fleischer-Schmid Corporation was attempted by publication, pursuant to the provisions of Chapter 28-06, N.D.R.C., 1943, as amended; such attempted service by publication was completed prior to the removal of the action to this Court.

Section 28-0620, N.D.R.C., 1943, sets forth four cases in which a summons may be served by publication, the second being: "When the defendant is a foreign corporation, joint stock company, or association and has no agent or other person in this state upon whom personal service can be made". It is under this provision that service by publication was sought to be made in this case.

Defendant Fleischer-Schmid Corporation predicates its motion for dismissal upon plaintiff's failure to comply with sub-section (1), Section 28-0621, N.D. R.C., 1943.

Section 28-0621 requires that "* * * before service of the summons by publication is authorized in any case, there shall be filed with the clerk of the district court of the county in which the action is commenced * * * an affidavit stating one of the grounds for service by publication * * * and also stating, unless the complaint shows: 1. That the defendant has property within this state or debts owing to him from residents thereof." Said sub-section (1) applies to this case; all other sub-sections under Section 28-0621 are inapplicable.

The affidavit referred to in Section 28-0621 failed to contain the required statement, and no allegations meeting the requirements of this statute were contained in the complaint.

Defendant Fleischer-Schmid Corporation's position is that since the plaintiff has at no time, either in his complaint or affidavit for publication, stated that the defendant has property within this state or debts owing to him from residents thereof, Section 28-0621, N.D.R.C., 1943, has not been complied with, and consequently there has been no valid service by publication made upon said defendant.

It is well settled in this state that proceedings for securing service by publication must strictly...