Manning v. Heady

The following opinion was filed October 13, 1885: Cole, 0. J. If the court never acquired jurisdiction of the defendant in the action of McCune v. Manning, the judgment in the case must be affirmed. For, aside from all questions of homestead rights, the decree of divorce transferred and vested the title to the twenty acres of land in dispute in the plaintiff; she is therefore in a position to assail the validity of that judgment and the sale under it, and is entitled to the relief granted, if it is void. The inquiry, then, is as to the validity of the judgment in the McOune suit. At the time of the commencement of that action, and for some time previously thereto, the defendant, Green Manning, was and had been a resident of the state of Iowa. Jurisdiction over him was attempted to be acquired by publication. The statute provides, where the defendant is a nonresident and has property within the state, or the cause of action arose within the state, that service of summons may be made by publication on obtaining an order therefor as therein prescribed. E. S. sec. 2639. The order must be made by the court or judge thereof upon an application based upon the complaint, duly verified and filed, and an affidavit, together showing the facts required to exist, and that the plaintiff is unable with due diligence to make service of the summons upon the defendant in respect to whom the order is applied for. Sec. 2640. We-have in the record the affidavit and complaint upon which the order of publication was made. While the affidavit states that Green Manning was a nonresident of this state, and resided at Charles City, state of Iowa, it wholly fails to show that he had property within this state, or that the cause of action arose within this state. These essential [634] facts must be shown to exist to authorize the granting of the order of publication. The order is dated April 21,1880, and recites that it was granted upon reading the complaint in the action, and the affidavit of the plaintiff therein, “ which are filed in the office of the clerk of the circuit court for Walworth county,” and, it appearing to the satisfaction of the circuit judge “ from said complaint and affidavit” that the plaintiff has a cause of action, etc., the order was made. As a matter of fact the indorsement of the clerk upon the original complaint shows that it was not filed in his office until the 13th of September, 1880. It should have been filed before the order of publication was made. Cummings v. Tabor, 61 Wis. 185. But the affidavit states no statutory ground for making the order, consequently jurisdiction over the defendant was not obtained. In view of the recitals in the -order, there can be no presumption that there was other proof made of the existence of the required facts aside from what appeared in the affidavit and complaint. And since these do not show the existence of the necessary facts, the order of publication was unauthorized. It is said, however, that sec. 2641 makes the order presumptive proof .of the existence of all facts required to exist to authorize the same to be made, and conclusive in all collateral actions and proceedings. We think this section was not intended to apply to a case where the record itself shows that the order was made upon insufficient or defective proof. Here the record shows what proof was made, and we must look into it to see if it authorizes the order. This is a question as to the service of summons where the record shows that the necessary and proper proof of the existence of the required facts was not made; therefore jurisdiction by publication was never obtained. If the order had recited that it appeared to the satisfaction of the circuit judge that the defendant was a nonresident and had [635] property within this state, there being nothing in the record to show what proof was made, the presumption would he that it was sufficient to authorize the order of publication. Storm v. Adams, 56 Wis. 137. But here the order contains no such recital, while the record shows that it was made upon an affidavit fatally defective. Ve therefore must hold that jurisdiction was not helped out by sec. 2611. It is true, the record shows that the summons and complaint were personally served upon Green Manning, in Iowa; but this service did not give the court jurisdiction over him, because there was no valid order of publication made. Weatherbee v. Weatherbee, 20 Wis. 499; Keeler v. Keeler, 24 Wis. 522. The judgment in the MeGune Case, being void for want of jurisdiction over the defendant, it follows that no legal sale could be made under it. The plaintiff was in possession of the twenty acres of land, and had the legal title by virtue of the judgment of divorce. She was entitled, therefore, to the relief granted. It is said that neither the evidence nor findings show that the defendant Henry Heady had any such interest in the sheriff’s certificate or in the land, when this action was brought, as amounted to the setting up of a claim thereto, within the meaning of the statute. It is very clear that he did not, in his answer, disclaim all title to the land and certificate and offer to give a release, as he should have done if he was not setting up some claim thereto. But really the sheriff’s certificate was issued to him, and, although he assigned it to his father just before the suit was commenced, this assignment was kept secret from the plaintiff and her attorneys. Besides, the evidence shows beyond all controversy that the sheriff’s certificate was entirely under his control all the time. The circuit court finds that the assignment was made by him to avoid the consequences of this action, which he expected would spon be brought, and that conclusion is fully warranted by the evidence. [636] We think the judgment of the circuit court was correct and must be affirmed. By the Court.— Judgment affirmed. A motion for a rehearing was denied December 23, 1885.