Young v. Schenck

Cole, J. It is objected that the affidavit for an order of publication in this case was defective in two particulars: first, that it was made by the attorney of the plaintiff instead of being made by the plaintiff himself; and second, that no facts are stated in the affidavit showing what diligence was used to ascertain the residence of'the defendant-Schenck. The statute regulating the manner of acquiring jurisdiction over non-resident defendants by publication, provides that in case of publication the court or judge shall direct a copy of the summons and complaint, or, in lieu of the complaint, a notice, to be deposited in the post office forthwith, directed to the person to be served, at his place of residence, unless it appears that such residence is neither known to the party making the application nor can with reasonable diligence be ascertained by him. Subd. 5, section 10, chap. 124, R. S. Row it is said that this statute clearly contemplates that the plaintiff himself shall make the affidavit for an order of publication. Whatever force there might be in this view as an original question, the practice has been in this state, we believe, for the plaintiff or attorney indiscriminately to make the affidavit; and an affidavit made by an attorney was held sufficient by the court in the case of the Farmers’ & Millers’ Bank v. Eldred, 20 Wis., 196. The reports of Rew York show that the practice of attorneys making affidavits for an order of publication has prevailed likewise in that state, under a similar statute. We are therefore disposed to overrule the objection. [559] Upon the other point, the affidavit states “ that the defendant John W. Schenck is a non-resident of the state of "Wisconsin, and cannot, after due diligence, he found therein.” And the affiant further states that “ he is informed and believes that the said John W. Schenek is a resident of the state of Hew York; but at what place in said state the said Schenek resides, he, this affiant, does not know, and can not with reasonable diligence ascertain.” In the case of the Farmers’ & Millers’ Bank v. Eldred, supra, the affidavit stated generally that the defendants could not, after due diligence, be found within the state; and the objection was taken that the affidavit must show what diligence had been used. It was held, however, that the affidavit authorized the order of publication. In this case, the fact that the defendant Schenek is a non-resident was positively stated; also the fact of the inability to find him in the state after due diligence; but what particular diligence was exercised to find him does not indeed appear, nor what was used to ascertain his place of residence. Must, then, facts and circumstances be set forth in the affidavit showing what kind of diligence was used ? "We think not. "We are disposed to hold that an affidavit which states generally that after due diligence the defendant cannot be found, within the state, nor the place of his residence ascertained, is a sufficient compliance with the statute to confer jurisdiction upon the officer to make the order. The cases of Rawdon v. Corbin, 3 How. Pr. R., 416; Vernam v. Holbrook, 5 id., 3; Van Wyck v. Hardy, 20 id., 222; Wortman v. Wortman, 17 Abbott, 66, directly or by implication support the tiews we have expressed. Again, it is insisted that the judgment should be reversed because from the order of reference it appears that the referee was required to ascertain the amount due the plaintiff on the note and mortoaffe. but was not directed to [560] examine the plaintiff or his agent upon oath, as to whether , any payments had been made on the mortgage debt. Undoubtedly such examination should be made in a case where there are non-resident defendants. Subd. 3, section 27, chap. 132, R. S., and.Circuit Court Rule Eo. 30. But the question is, whether the defendant Schenck is in a position to raise this objection ? "We think he is not. It is alleged in the complaint that he is a subsequent incumbrancer, and such, we assume, is his relation to the property. Row it does not appear that he is in anywise prejudiced by this irregularity. Suppose payments had been made upon the mortgage debt, which did not appear to have been indorsed upon the note and mortgage ? Still it is manifest that this-is a matter which alone concerns the mortgagor, if the property is of sufficient value to discharge all liens upon it; In Boyd v. Sumner, 10 Wis., 41, it was held, that if the principal debtor acquiesces in a judgment to pay more than legal interest, a subsequent incumbrancer could not complain of the judgment, unless he shows that he has sustained an injury thereby. The principle there decided is strictly applicable here. , ■ There is nothing in the record to show that Schenck was aggrieved by this irregularity. His proper remedy was to apply to the circuit court to set aside the judgment, furnishing some proof that he was prejudiced by the error in practice. As the record now stands, he cannot avail himself of it in this court for the first time. By the Court. — The judgment of the circuit court is affirmed. 8