Woods v. Pollard

• Decision Date: 21 November 1900
• Citation: 84 N.W. 214,14 S.D. 44
• Parties: WOODS v. POLLARD.
• Court: South Dakota Supreme Court

84 N.W. 214

14 S.D. 44

WOODS v. POLLARD.

Supreme Court of South Dakota

November 21, 1900

Appeal from circuit court, Davison county; Frank B. Smith, Judge.

Action by James H. Woods against A. C. Pollard to recover on a note. From an order vacating an order for publication, the summons judgment, and proceedings in the action, plaintiff appeals and defendant presents a cross appeal. Cross appeal dismissed, and cause reversed.

A. E Hitchcock, for appellant. H. C. Preston and T. J. Spangler, for respondent.

CORSON J.

This is an appeal from an order vacating and setting aside an order for publication made by the circuit court, and the summons judgment, and proceedings in the action. The motion was made upon the following ground, among others: "That the affidavit for the publication of the summons does not show due diligence to find the defendant within this state, in order to serve upon him the summons within this state." The court, in its order vacating the judgment, states specifically that the motion is granted upon the ground that the affidavits for publication do not show due diligence on the part of the plaintiff to find the defendant within the state. The deputy sheriff of Davison county, in his affidavit made September 30, 1899, states that the summons in this action was placed in his hands for service, and that after making diligent search, and inquiry of various persons who would be likely to know of the whereabouts of said defendant, affiant was not able to find said defendant, and could not make personal service of the summons upon him within said Davison county. He further states that he was acquainted with the defendant; that defendant sold his residence in the city of Mitchell in August, 1899, and removed with his family from the state of South Dakota to the town of Battle Lake, in Minnesota. And affiant further states, on information and belief, that said defendant is at present at Battle Lake, Minn., and that, after due and diligent search, defendant could not be found within the state of South Dakota. The affidavit of the plaintiff's attorney is substantially as follows: That the defendant, after due diligence, cannot be found within the state of South Dakota, and personal service of the summons in this action cannot be made upon him. That the diligence used to find the defendant consisted of the following acts: That the summons in this action was placed in the hands of the sheriff for service, and the return of said sheriff, in the form of an affidavit, is referred to. That affiant has known the defendant for a number of years; he having resided at Mitchell, where the attorney resides, for that period. That said defendant sold the residence owned by him in that city in August, 1899, and severed his business connections, and removed his family to Battle Lake, Minn., where he is now present, as affiant is informed by various persons. That affiant was shown a letter in the handwriting of said defendant, written to one Patton, concerning business transactions; said Patton being the successor of the defendant as secretary of the Monmouth Merchant Mills, a corporation doing business in the city of Mitchell, and the same was written within the week preceding the making of the affidavit. It will be seen from these affidavits that the plaintiff did use diligence to find the defendant within this state, and that the probative facts stated are quite as strong as those in the case of Bank v. Jacobson, 8 S. D. 292, 66 N.W. 453, which this court held contained a sufficient statement of the probative facts showing diligence on the part of the plaintiff to warrant the court in making the order for publication. While, undoubtedly, it would have been more satisfactory to the court granting the order for publication if the deputy sheriff and the attorney had given the names of the persons of whom they made inquiries, and the reasons why inquiries were made of such persons, still the failure to give the names and the information received does not, as a matter of law, render the proof insufficient to satisfy the court or judge. It will thus be seen that the plaintiff placed the summons in the hands of the sheriff, who makes affidavit that he could not find the defendant within his county (being the county where the defendant had his former residence), and stating that he had made diligent search, and inquiries of various persons who would be likely to know of the whereabouts of the said defendant, and was unable to make personal service of the summons upon him within his county; and it will be noticed that he further states that about a month previous the defendant sold his residence in the city of Mitchell, and removed with his family to Battle Lake, Minn. The affidavit of the attorney states more fully and at large the circumstances of the defendant's removal to Minnesota, and other facts tending to prove that he could not, at the time the affidavit was made, be found within this state. Upon this evidence, we think the court was justified in finding that due diligence had been used, and that it was sufficient to satisfy the court that the defendant could not, after due diligence, be found within the state, and fully justified the order for publication. This case differs from the case of Bothell...