Hafern v. Davis

By the Court, Dixon, C. J. The judgment in this case cannot be reversed for any irregularity in the appointment of the next friend of the defendant in error. By our statute of jeofails, as it existed prior to the repeal of the statutes of 1849, such defect was cured by verdict or judgment in favor of the infant. Sub. 7, sec. 7, chap. 100, Revised Statutes of 1849. 'Our present statute is much more broad and liberal. All objections not going to the merits of the action or defence, seem to be swept out of existence. Section 40, of chapter 125, provides: K the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of any such error or defect.” This is evidently an error or defect which does not affect the substantial rights of the plaintiff in error. The affidavit on which the order for publishing the summons was made is clearly defective, and by it no jurisdiction [503] was conferred either on the commissioner or court. It is a well settled rule that in all such special proceedings, by which the rights of absent or non-resident defendants are to be affected or bound, the requirements of the statute must be strictly complied with. This affidavit does not state a case falling within either subdivision of section 40 of the code. It is so totally defective that it is difficult to say under which subdivision the pleader intended to proceed. It comes, perhaps, nearer to making a case under subdivision two than any other, and such may have been the intention. If so, it is defective in not stating that the defendant, (plaintiff in error) was a resident of this state, or that he departed. therefrom with intent to defraud his creditors or avoid the service of a summons. It might, it is true, be inferred from the statements that he “ has absconded and left the state of Wisconsin/’ and “ deponent has made diligent inquiry of the neighbors of said defendant, where he resided before leaving the state,’’ that he was or had at some time - been a resident, if it was not afterwards stated that the deponent was “unable, after such inquiry, to ascertain his residence.” ' If it be permissible to state such facts inferentialy, the inference to be drawn from the two first statements, is neutralized by the last. If he ever resided in this state, the particulars of such residence, as to time and place, are not shown, nor does it appear when, or with what intention, he departed. The statute plainly refers to the defendant’s place of residence at the time the proceedings are taken. The allegation that the deponent “ cannot ascertain where he is, but believes he keeps himself out of this state to prevent being served or arrested on process,” is no evidence to show with what intent he departed. He might have left from very proper motives, and yet this charge be true. It is the intent with which he departed, and not that with which he keeps out of the state, that constitutes the basis of the proceeding under this subdivision. [504] If intended as a proceeding under .the third subdivision, then the affidavit is not good. It does not state that the defendant was a non-resident, nor that he had property within this state. The affidavit is in other respects irregular. Most of the statements are made upon information and belief. Such statements are but hearsay, and not evidence of facts. They are excluded by the familiar rule of law which requires the best evidence of which the nature of the case will permit. We do not wish to be understood as deciding that in no case can such statements be received. Under certain circumstances, and in connection with other facts clearly proved, they, perhaps, may be. But where the facts are such as can be established by direct and positive testimony, they should be. Such was the fact of residence in this state; yet all that is said upon this subject is upon information and belief merely. It is a general rule that witnesses must speak of facts and circumstances within their own knowledge. If information is received, it should be as to such matters as cannot otherwise be shown. The names of the informants should be stated, so that the officer may judge o,f their credibility and means of knowledge, and a satisfactory reason shown for not calling them, as that they are members of the defendant’s family, or adversely interested. 6 Hill, 187. None of these things were done in this case. There having been no legal evidence before the commissioner tending to prove many of the material facts to be established, no such prima facie case was made out as to give him jurisdiction, and make his decision conclusive. The judgment of the circuit court must, therefore, be reversed.