Voelz v. Voelz

Cassoday, J. The question presented is whether the court acquired jurisdiction over the interests of the nonresident defendants Frederick and his wife in the premises in question by the service of the summons by publication. The [508] statute requires that the application for the order of publication shall be based upon the complaint, duly verified and filed, and an aifidavit, together showing the facts required to exist, etc. Sec. 2610, R. S. No objection is made to the sufficiency of the affidavit, nor the form and contents of the order of publication. The contention of the learned counsel for the appellant is that the order of publication was in fact made before the complaint was filed with the clerk of the court, and hence that, under the repeated decisions of this court, the order was a nullity. That such is the law where such is the fact seems to be well established and is really Conceded. Cummings v. Tabor, 61 Wis. 185; Manning v. Heady, 64 Wis. 630; Witt v. Meyer, 69 Wis. 595. As indicated in the foregoing statement, the order of publication is dated September 19, 1890. But that is not conclusive as to the time when it was in fact made. All agree that the complaint was not filed in the clerk’s office until September 20, 1890. There is a discrepancy in the affidavits as to the time of that day when it was filed. It recites, however, “ that the plaintiff’s complaint herein is duly verified, and has been filed with the clerk of the circuit court,” etc. The trial court found upon the conflicting affidavits presented, as a matter of fact, that the order of publication dated September 19, 1890, was not signed by the commissioner granting the same until September 20, 1890, and until after the summons and complaint had been filed in the office of the clerk of the circuit court. This finding is sustained by the showing made. Accepting the fact so found as sustained by the affidavits, as we do, it is manifest that the court acquired jurisdiction over the interests of the nonresident appellant in the land. This being so, it follows that any errors of the trial court in the proceedings herein were, at most, mere irregularities. Assuming that there may have been such irregularities, yet the appellant entirely failed to make any such showing upon [509] the merits as to Justify this court in holding that there has been an abuse of discretion in refusing to set aside the judgment and open the default. Elmer v. Mitchell, 75 Wis. 358. This renders it unnecessary to consider other 'questions discussed by counsel. By the Court.— The order of the circuit court is affirmed.