Palmer v. McMaster

• Decision Date: 15 May 1893
• Parties: PALMER v. McMASTER.
• Court: Montana Supreme Court

33 P. 132

13 Mont. 184

PALMER v. McMASTER.

Supreme Court of Montana

May 15, 1893

Appeal from district court, Deer Lodge county; D. M. Durfee, Judge.

Action by Emma J. Palmer against James B. McMaster. From a judgment for plaintiff, defendant appeals. Affirmed.

W. H Trippet and Brantley & Scharnikow, for appellant.

Cole & Whitehill, for respondent.

PEMBERTON C.J.

This case has been several times before this court on appeal, (19 P. 585, and 25 P. 1056,) and the errors assigned in the record on this appeal have nearly or quite all been passed upon in the former appeals of the case. It is a case for damages for the conversion of certain personal property described in the complaint of respondent, who was plaintiff in the court below. The appellant, the defendant below, was at the time of the conversion complained of, sheriff of Deer Lodge county, and, among other defenses set up in his answer sought to justify the seizure of the property claimed to have been converted under an execution in his hands, issued out of the court below, upon a judgment rendered in said court against one William J. Palmer, husband of the respondent. The action against the said William J. Palmer was commenced by publication of summons. The affidavit on which the order of publication of summons was made by the court below is as follows: "James M. Bailey, being duly sworn, says on oath he is the plaintiff above named. That the above-entitled cause has been begun, and summons has been issued thereon, and is now pending in said court. That said defendant has departed from this territory, and cannot be found therein. That plaintiff has a good and subsisting cause against the defendant in this: that said defendant is indebted to plaintiff as follows: That on the 10th day of March, 1880, defendant executed to plaintiff and one Hart-well his promissory note for $113, payable six months from date, with 1 1/2 per cent, per month interest, which defendant has failed to pay, and said note was assigned to plaintiff. And for second cause of action said plaintiff sold to defendant in May, 1883, 8,265 pounds of oats, which defendant agreed to pay plaintiff therefor the sum of 3 cents per pound,--$247.95. And plaintiff sold to defendant two horses, of the value of $200, which defendant agreed to pay plaintiff; all of which more fully appears by plaintiff's complaint on file in said cause. James M. Bailey." The suit of James M. Bailey v. William J. Palmer was prosecuted to judgment. In the trial of the case at bar below the appellant offered in evidence, in justification of his seizure of the property converted, the judgment in the case of Bailey v. Palmer. The court excluded the evidence on the ground that the affidavit for an order of publication of summons, quoted above, was not sufficient to authorize or support such order of publication, and that the judgment rendered thereon in favor of Bailey was void. This ruling of the court is the principal error assigned in this case.

This court held in Palmer v. McMaster, 8 Mont. 186, 19 P 585, and Alderson v. Marshall, 7 Mont. 288, 16 P. 576, that a proper and sufficient affidavit for an order of publication in cases of constructive service of summons is a prerequisite to a valid judgment. The question before this court is as to the sufficiency of this affidavit. It is the settled doctrine "that the statutory provisions for acquiring jurisdiction of a defendant by the publication of the summons in the stead of a personal service must be strictly and exactly" complied with by stating in the affidavit for the order of publication the probatory facts by which the ultimate facts which the statute calls for are shown. 1 Black, Judgm. § 232. In Ricketson v. Richardson, 26 Cal. 149, the court says: "An affidavit which merely repeats the language or substance of the statute is not sufficient. Unavoidably the statute cannot go into details, but is compelled to content itself with a statement of the ultimate facts which must be made to appear, leaving the detail to be supplied by the affidavit from the facts and circumstances of the particular case. Between the statute and the affidavit there is a relation which is analogous to that existing...