Manning v. Heady

• Decision Date: 13 October 1885
• Citation: 25 N.W. 1,64 Wis. 630
• Parties: MANNING v. HEADY.
• Court: Wisconsin Supreme Court

64 Wis. 630

25 N.W. 1

MANNING

v.HEADY.

Supreme Court of Wisconsin.

Filed October 13, 1885.

Appeal from circuit court, Jefferson county.

Page & Cass, for respondent, Nancy Manning.

Henry Heady, pro se.

COLE, C. J.

If the court never acquired jurisdiction of the defendant in the action, ( McCune v. Manning,) the judgment in the case must be affirmed. For, aside from all questions of homestead rights, the decree of divorce transferred and vested the title to the 20 acres of land in dispute in the plaintiff; she is therefore in a position to assail the validity of that judgment and the sale under it, and is entitled to the relief granted, if it is void. The inquiry, then, is as to the validity of the judgment in the McCune suit. At the time of the commencement of that action, and for some time previously thereto, the defendant, Green Manning, was and had been a resident of the state of Iowa. Jurisdiction over him was attempted to be acquired by publication. The statute provides, where the defendant is a non-resident and has property within the state, or the cause of action arose within the state, that service of summons may be made by publication on obtaining an order therefor as therein prescribed. Rev. St. § 2639. The order must be made by the court or judge thereof upon an application based upon the complaint, duly verified and filed, and an affidavit, together showing the facts required to exist, and that the plaintiff is unable with due diligence to make service of the summons upon the defendant in respect to whom the order is applied for. Section 2640. We have in the record the affidavit and complaint upon which the order of publicationwas made. While the affidavit states that Green Manning was a non-resident of this state, and resided at Charles City, state of Iowa, it wholly fails to show that he had property within this state, or that the cause of action arose within this state. These essential facts must be shown to exist to authorize the granting of the order of publication. The order is dated April 27, 1880, and recites that it was granted upon reading the complaint in the action, and the affidavit of the plaintiff therein, which are filed in the office of “the clerk of the circuit court for Walworth county,” and it appearing to the satisfaction of the circuit judge “from said complaint and affidavit” that the plaintiff has a cause of action, etc., the order was made. As a matter of fact the indorsement of the clerk upon the original complaint shows that it was not filed in his office until the thirteenth of September, 1880. It should have been filed before the order of publication was made. Cummings v. Tabor, 61 Wis. 185;S. C. 21 N. W. Rep. 72.

But the affidavit states no statutory ground for making the order, consequently jurisdiction over the defendant was not obtained. In view of the recitals in the order, there can be no presumption that there was other proof made of the existence of the required facts aside from what appeared in the affidavit and complaint. And since these do not show the existence of the necessary facts, the order of publication was unauthorized. It is said, however, that section 2641 makes the...