Cochran v. Germain

FuuuKr, P. J, Whether the trial court obtained jurisdiction by the publication of a summons and personal service thereof in another state is the only question presented by this appeal from an order setting aside a judgment obtained against non-resident defendants in an action on a promissory note. Appellant’s affidavit, upon which the order for publication was based, is as follows: “E. W. Coughran, being first duly sworn, deposes and says, that he is the plaintiff in the above entitled action; that a cause of action exists in favor of the plaintiff and against the defendants upon contract for the recovery of money, only, in the sum of $315 and interest thereon from the first day of January, 1896, at the rate of 12 per cent, per annum, the grounds of which are more particularly set forth in the verified complaint which was filed in the office of the clerk of this court on the 5th day of February, 1896, and which is hereby referred to for a complete statement of the grounds of said action; that the defendants are not, and neither of them is, a resident of, or within the State of South Dakota, but, on the contrary, the defendants both reside and are, and their’postoffice address is, at Alden, in the county of Freeborn and State of Minnesota, and they cannot, and neither of them can, be found in the State of South Dakota for the purpose of serving the summons in the said action upon them or either of them; that the defendants, or one of them, has real property in the county of Minnehaha and State of South Dakota, upon which this plaintiff caused a writ of attachment to be levied on the 6th day of February, 1896, the said real property being within the jurisdiction of this court.” Section 4900 of the Compiled Laws provides that: “Where the person on whom the service of the summons is to be made cannot, after due diligence, be found within the state, and that fact ajipears by affidavit to the satisfaction of the court or a judge thereof, and it in like manner appears that a cause of action exists against [79] the defendant in respect to whom the service is to be made, * * * such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases: fi) * * * (2) * * * (3) Where he is not a resident of this state but has property therein, and the court has jurisdiction of the subject of the action.” As the requirements of the phrase “due diligence” must always be determined by the particular circumstances of the case calling for its exercise, and it was made to appear by the unequivocal sworn statement of plaintiff that neither of the defendants were residents of or within this state, but on the contrary the postoffice address and fixed residence of each was Alden, Freeborn county, Minnesota, where they both actually were at the time, the conclusion was justifiable that “they cannot, and neither of them can, be found in the State of South Dakota,” and this was further corroborated when the parties named were personally served at the place designated. So far as the search was concerned, no further diligence was due after such ultimate fact had been ascertained to a moral certainty and the satisfaction of the court. Proof that these nonresident defendants were then at Alden, in the county of Freeborn and State of Minnesota, when considered with other probative facts disclosed by the affidavit, enabled the trial court to judicially determine that “the persons on whom the service of the summons rs to be made cannot, after due diligence, be found within the state.” The affidavit in the case of Bothell v. Hoellwarth, 10 S. D. 491, 74 N. W. 231, while giving the residence of the defendants in another state, and alleging their absence from this state, failed to designate where they actually were at the time the application was made, and it was therefore held that it had not been sufficiently shown that the defendants could not be found within this state. While the respective briefs have received careful consideration, [80] it is not deemed necessary to extend this opinion by a discussion of the remaining points urged by counsel for the respondents in support of their view, and the-order appealed from is reversed. Corson, J., dissenting.