Simensen v. Simensen

• Decision Date: 26 July 1904
• Citation: Simensen v. Simensen, 13 N.D. 305, 100 N.W. 708 (N.D. 1904)
• Court: North Dakota Supreme Court

100 N.W. 708

13 N.D. 305

OLE SIMENSEN v. RHODA SIMENSEN

Supreme Court of North Dakota

July 26, 1904

Appeal from District Court, Ramsey county; Palda, J.

Action by Ole Simensen against Rhoda Simensen. Judgment for plaintiff. Defendant appeals.

Reversed.

Reversed.

George E. Dietrich, John F. Henry, and Henry M. Gray, for appellant.

Affidavit for publication of summons must not follow in the language of the statute merely, but state the evidential facts showing the existance of ultimate facts requisite to the granting of an order for the publication. Beach v. Beach, 6 Dak 371, 43 N.W. 701; Coughran v. Markley, 87 N.W. 2; Bothell v. Hoellwarth, 74 N.W. 231.

Affidavit must show not only that the defendant was a nonresident; but that she could not be found in the state. Bothell v Hoellwarth, supra; Carlton v. Carlton, 85 N.Y. 313.

Publication cannot be granted on an uncertain showing, but only on facts existing at the date of the order or very nearly prior thereto. Rosevelt v. Land & River Co., 84 N.W. 157; New York Baptist Union for Ministerial Education v Atwell et al., 54 N.W. 760; Adams v. Hosmer, Circuit Judge, 56 N.W. 1051; Forbes v. Hyde, et al., 31 Cal. 342; Cohn v. Kember, 47 Cal. 144; Armstrong v. Middlestadt, 36 N.W. 151; Campbell v. McCahan, 41 Ill. 45; Foster v. Jelinski, 3 Ill.App. 345; Rockman v. Ackerman, 85 N.W. 491.

Where notice is given by publication, the court acquires no jurisdiction to render judgment until proper proof of compliance with the statute appears of record. 17 Enc. Pl. & Pr. 47; Barber v. Morris, 37 Minn. 194; Priestman v. Priestman, 72 N.W. 535; Horn et al. v. Indianapolis Nat'l Bank, 25 N.E. 558; Reed v. Catlin, 6 N.W. 326; Allen v. Richardson, 92 N.W. 1075.

Townsend & Denoyer, for respondent.

Order for publication of summons recites the filing of the affidavit of publication; the clerk's file marks made later does not dispute the record, nor will the law permit it to, as the recital imports verity and is conclusive. Northwestern Mutual Life Ins. Co. v. Neeves, 49 N.W. 832; Connolly v. Rue, 35 N.E. 824.

The filing of the affidavit of publication is unnecessary before judgment. Allen v. Richardson, 92 N.W. 1075; Dowell v. Lahn, 97 Ind. 146; Wyatt's Admr. v. Steele, 26 Ala. 639; Searle v. Gilbraith, 73 Ill. 269; 1 Freeman on Judgments, section 127 p. 224; Collins v. Regan, 32 Barb. 647; Belmont v. Cornen, 82 N.Y. 256; Barnard v. Heydrick, 49 Barb. 92; Knapp v. King, 6 Ore. 243; Goodale v. Coffee, 24 Ore. 346; Coughran v. Markley, 87 N.W. 2.

Verified complaint constitutes part of the affidavit of publication. 17 Enc. Pl. & Pr. 76.

The affidavit was sufficient. Belmont v. Cormen, 82 N.Y. 256.

FISK, District Judge. MORGAN, J., took no part in the decision; Judge FISK, of the First Judicial District, sitting in his place by request.

OPINION

FISK, District Judge.

This appeal calls in question the correctness of an order made by the district court of Ramsey county on September 24, 1903, denying defendant's motion to vacate a default judgment of divorce granted to plaintiff on January 31, 1894. The record discloses that the only service of the summons relied upon by plaintiff was what is known as "constructive service," or service by publication. The motion to vacate was based upon a petition signed by defendant's attorneys, and also upon the affidavit of defendant and others annexed to said petition, from which it appears that the plaintiff and defendant were married in 1880 in the state of Wisconsin, where they lived together as husband and wife for about four years, after which they removed to Ramsey county, this state, where they lived together for about six years, or until October, 1889, at which time the defendant left the plaintiff for alleged cause, and went to the state of Wisconsin, where she has ever since resided; that on June 3, 1893, a summons was issued in said action, and a verified complaint was filed in the office of the clerk. On said date the sheriff of said county filed his return, stating that "on the 3d day of June, 1893, the annexed summons and complaint were placed in my hands for service, and thereupon I made diligent search within the body of the county of Ramsey for Rhoda Simensen, defendant, and, after due diligence, I was unable to find defendant, so as to make personal service, for the reason that said defendant does not reside within said county, nor within the state of North Dakota, as I am informed by John O. Siverson, Ever Wagness, and A. J. Stade, former neighbors and acquaintances of defendant. I am further informed by them that she removed from the state during the year 1890, and now resides at Whitehall, Trempealeau county, state of Wisconsin, as I verily believe." The next step taken was on the 26th day of October following, at which date an affidavit was made by one of plaintiff's attorneys as follows (omitting title): "Joseph Denoyer, being first by me duly sworn, deposes and says that he is one of the attorneys for the plaintiff in the above-entitled action, and that plaintiff has a just cause for action against the defendant herein, as will appear by the complaint of the plaintiff, a copy of which is hereto annexed; that said action is for divorce from defendant by plaintiff, and that said defendant cannot, after due diligence, be found in the state of North Dakota; that a summons was duly issued against said defendant, and placed in the hands of the sheriff of said county for service, but was returned by said sheriff with his endorsement thereon that said defendant does not reside within said county of Ramsey, nor within the state of North Dakota, as he was informed by John O. Siverson, Ever Wagness, and A. J. Stade, former neighbors and acquaintances of defendant; that he was further informed by them that she removed from said state during the year 1890, and now resides at Whitehall, Trempealeau county, state of Wisconsin, as he verily believes; that said summons and return are hereto attached, and that the place of residence of said defendant is, as affiant is informed, at West Superior, Wisconsin, she having removed from Whitehall, Wisconsin, to Superior; that he was so informed by letter from one W. L. Frederickson, sheriff of Trempealeau county, Wisconsin." Upon the back of said affidavit appears an order dated October 26, 1893, in the usual form, directing service of the summons by publication in a newspaper; said order also directing a copy of the summons and complaint to be forthwith deposited in the post office, postage prepaid, and directed to the defendant, at West Superior, Wis. This affidavit and order were not filed with the clerk until February 1, 1894. On January 31, 1894, an order for judgment in due form was made, and it appears that an affidavit of mailing summons and complaint pursuant to the order for publication of summons, together with the publisher's affidavit showing such publication, and also an affidavit of defendant's default, were filed on February 1st. It also appears that the only service of the summons was by publication, and that defendant had no knowledge of the pendency of the action until a short time before her application was made to vacate said default judgment. It is alleged in the petition of defendant that neither party has remarried since the rendition of the judgment aforesaid, and the defendant prays the court to declare the said judgment void, and, further, that she be given a reasonable time in which to file her answer, and that she have certain other relief by way of alimony. The ground alleged by defendant in support of her motion to vacate said judgment is that the court acquired no jurisdiction to render such judgment, for the reason that no service of the summons was made upon her; the attempted service by publication being void by reason of a noncompliance with the provisions of the Code relative to constructive service. It is contended by appellant that the affidavit upon which the order for publication of the summons was based is fatally defective, and further that because such affidavit, as well as the order aforesaid, were not filed until after such judgment was rendered, the same is void.

We are unable to agree with the district court in its ruling upon said motion. The affidavit presented as a foundation for the order permitting constructive service of the summons was defective, and the proceedings based thereon were insufficient, in our opinion, to confer jurisdiction. The affidavit failed to show, as the law required at that time any diligence to effect personal service within the state. It has repeatedly been held, not only in this jurisdiction, but elsewhere, that the affidavit must show such facts as will enable the court to judicially determine that personal service upon the defendant cannot be made within the state; and the law in force at the time said affidavit was presented, and said order made, expressly so required. The statute was mandatory, and a failure to comply strictly therewith operated to confer no jurisdiction over the person of the defendant. Beach v. Beach, 6 Dak. 371, 43 N.W. 701; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Bothell v. Hoellwarth, 10 S.D. 491, 74 N.W. 231; Carleton v. Carleton, 85 N.Y. 313; McCracken v. Flanagan, 127 N.Y. 493, 28 N.E. 385, 24 Am. St. Rep. 481; Kennedy v. New York Life Ins. Co., 32 Hun 35; Greenbaum v. Dwyer, 66 How. Pr. 266. The affidavit simply sets forth, in the...