O'Malley v. Fricke

• Citation: 104 Wis. 280,80 N.W. 436
• Parties: O'MALLEY v. FRICKE ET AL.
• Decision Date: 20 October 1899
• Court: United States State Supreme Court of Wisconsin

104 Wis. 280

80 N.W. 436

O'MALLEY

v.FRICKE ET AL.

Supreme Court of Wisconsin.

Oct. 20, 1899.

Appeal from circuit court, Sauk county; R. G. Siebecker, Judge.

Action by Emma O'Malley against Anthony Fricke and another. From a judgment for plaintiff, defendants appeal. Reversed.

This is an action of ejectment for a farm of 122 acres. Both parties claim title under Thomas O'Malley; the plaintiff founding her title upon a decree of divorce between herself and Thomas O'Malley rendered by the circuit court of Sauk county September 14, 1897, and the defendant Bridget Fricke founding her title upon a warranty deed executed by Thomas O'Malley to herself December 18, 1897. The principal and controlling question upon the trial was whether the decree in the divorce action was a valid decree, and constituted an effective transfer of the title of the land in question to the plaintiff. The court held the decree valid, and from a verdict in favor of the plaintiff the defendants appeal.G. Stevens, for appellants.

Herman Grotophorst, for respondent.

WINSLOW, J. (after stating the facts).

Two contentions are made by the appellants: First, that the order of publication in the divorce action was void, and hence that no jurisdiction was obtained by the court in that action; and, second, that, even if jurisdiction to render judgment for divorce was obtained, still the court could not transfer the title to real estate when the only service upon the defendant was substituted service.

It seems entirely plain that, following the decision of this court in Beaupre v. Brigham, 79 Wis. 436, 48 N. W. 596, the order of publication in this case was fatally defective, and hence that no jurisdiction was obtained by the publication of the summons. The statute governing service by publication (section 2640, Rev. St. 1878) provides that the order shall direct the publication of the summons, and also contain a direction that a copy of the summons and complaint be deposited in the post office, addressed to the defendant, “or a direction that such deposit may be omitted because the defendant's postoffice address cannot be ascertained.” The order in the present case contained neither a direction for mailing, nor a direction that mailing might be omitted. It avails not to say that it was shown by the affidavit for publication that the defendant's post-office address could not be ascertained. This is insufficient. There must also be a judicial finding of that fact contained in...