Star v. Mahan
| Decision Date | 04 October 1886 |
| Citation | 30 N.W. 169,4 Dakota 213 |
| Parties | Star and another, Copartners, etc., v. Mahan and another. |
| Court | North Dakota Supreme Court |
Appeal from Lawrence county.
A. W Hastie, for defendants and appellants. Van Cise & Wilson, for plaintiffs and respondents.
On February 20, 1882, an attachment issued against defendants' property, and defendants were served by publication. On the twenty-first day of September, 1882 judgment was entered against the defendants for $90.35, in Lawrence county. On the twenty-ninth day of April, 1884, the defendants moved to set aside the judgment, and all subsequent proceedings therein, upon the following grounds "First, that the order of publication of the summons in said action directed and ordered that a copy of the said summons and complaint be forth with deposited in the post-office, directed to the said defendants at their said place of residence, and is defective and insufficient in not directing that each of said defendants should be so served with a copy of said summons and complaint; second, that the said summons and complaint were not forthwith deposited in the post-office, as directed in said order of publication, but were held and delayed by said plaintiffs for ten days, after said order was so made and filed, before the said summons and complaint were deposited in the post-office as aforesaid; third, that the affidavit of Seth Bullock in said action, made for the purpose of obtaining publication of the summons therein, and upon which the order was granted, does not state and show the place of residence of both of these defendants, or either of them, and neither does it state and show that they are not residents of this territory, as required by law; fourth, that the summons does not state the time and place of the filing of the complaint herein; fifth, for other good and sufficient reasons." This motion was made upon the files, records, and proceedings in the action. On the thirteenth day of September, 1884, the court overruled the motion. Defendants duly excepted to said order, and this appeal is for the purpose of reviewing said order. The errors relied upon appear from the opinion.
The order for service by publication directed that copies of the summons and complaint be forthwith deposited in the post-office, directed to defendants. This was not done until 10 days had expired after making and filing the order, and it is claimed...
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