Billings v. Kothe

Rothrock, Ch. J. 1. practice : notice of motion. I. It is urged that the court below ought not to have entertained the defendant’s motion to vacate the judgment, because notice-thereof was not served on the plaintiff. It is sufficient to say, in answer to this objection, that as plaintiff appeared and moved to correct the record, which was sustained on the day after the defendant’s motion was filed, and the plaintiff was present and excepted to the order vacating the judgment, no prejudice resulted to him for the want of a formal notice of the motion. 2_.service by publication: jurisdiction. II. The only question presented in this record which we can properly consider, and to which exceptions were taken in the court below, is whether the publication of an original notice, in an action against a non-resi<jen£ defendant, made and completed before the filing of the petition and the issuance of the writ of attachment, gives the court jurisdiction of the attached property so as to render a judgment and order directing it to be sold in satisfaction of the plaintiff’s demand. The authority for service by publication is found in section 2618 of the Code, which provides that “service may be made by publication when an affidavit is filed that personal service cannot be made on the defendant within this State, in either of the following cases. * * * * * Fifth — In actions brought against non-residents of this State or a foreign corporation having in this State property * * * * * sought to be taken by any of the provisional remedies * * * * * -rán pe observed that by the foregoing provisions the service may be made by publication in actions brought. While it is true an action is said to be commenced by serving the defendant with an original notice, yet it cannot be said to be brought until a petition has been filed setting forth the cause of action. We think there is no authority to serve by publication until after the action is fully brought. This view is strengthened by section 2619, which provides that “the publication must be made by publishing the notice [37] * * * * in some newspaper in the county where the petition is filed.” The publication of the notice at a time not authorized was a defect in the proceedings which could not be amended, and we think the court did not err in setting aside the judgment as soon as the want of jurisdiction was discovered. Affirmed.