Rollins v. Maxwell Bros.

Cassoday, 0. J. This action, is to recover the balance due on the purchase price for goods sold and delivered by the plaintiff to the defendant, a foreign corporation having its principal office in Chicago. The question presented relates to the service of process on the defendant. Our statutes provide that the summons and accompanying complaint may be served upon corporations generally with the same “effect as personal service on natural persons, by delivering” copies thereof to the officers or persons therein named, and also upon such foreign corporations by delivering the same “to any such officer being within the state, or to any agent having charge or of conducting any business therefor in this state, or any trustee or assignee of such corporation, or upon the secretary of state, as provided in sec. 17'IOb. But such service can be made upon a foreign corporation only either when it has property within the state or the cause of action arose therein, or the cause of action exists in favor of a resident of the state, and upon the secretary of state only when the cause of action arises out of business transacted in this state or when the defendant has property therein.” Sec. 2637, Stats. 1898. It appears from the record, and is undisputed, that the defendant, as such foreign corporation, had fully complied with the requirements ■of see. 1770b as early as October 23, 1903. Since it appears from the affidavits and papers upon which the order of publication is based that at the times mentioned in the foregoing •.statement the defendant was Such foreign corporation, having within this state real property which had been attached in this action, and that the cause of action existed in favor of the plaintiff and against the defendant and arose within this state, it is very obvious that the summons and complaint might have been served upon the secretary of state, as prescribed in said sec. 1770b. But there is no claim that the summons or the summons and complaint were so served on the secretary of state. On the contrary, the action of the trial court is based upon the order of publication made October 17, 1904, [147] and tbe personal service of the summons and complaint on the defendant’s vice-president and treasurer in Chicago, October 24,1904, which, when done, as prescribed in the order of publication, was to “have the same effect as a completed publication and mailing.” Of course, such personal service outside the state had no greater or other effect than completed publication and mailing would have had. Manning v. Heady, 64 Wis. 630, 25 N. W. 1. In other words, “personal service of the summons and complant outside of the state will not give jurisdiction if no valid order for service was made.” Oelbermann v. Ide, 93 Wis. 669, 68 N. W. 393; Roosevelt v. Land & River Co. 108 Wis. 653, 84 N. W. 157; Rochman v. Ackerman, 109 Wis. 639, 85 N. W. 491. The affidavits and papers upon which the order of publication was based certainly fail to show that the summons and complaint could not have been served upon the secretary of state as prescribed in sec. 1770b, and subd. 13, sec. 2637, Stats. 1898. The question recurs whether such affidavit and papers stated facts sufficient to authorize such order of publication. The statute declares that: “Service of the summons may be made without the state or by publication upon a defendant against whom a cause of action appears to exist ... on obtaining an order therefor as provided in the next following section, in either of the following cases: (1) When such defendant is a nonresident of this state -or his residence is unknown, or is a foreign corporation, and the defendant has property within the state, or the cause of action arose therein, and the court has jurisdiction of the subject of the action, whether the action be founded on contract or tort.” Sec. 2639. “The next following section,” therein mentioned, declares that : “The order mentioned in the preceding section shall be made by the court or judge thereof. The application therefor ■shall be based upon the complaint, duly verified and filed, and :an affidavit, together showing the facts required to exist amd [148] that the plaintiff is unable, with due diligence, to malee service of the summons upon the defendant in respect to whom such order is applied for .” Sec. 2640. This section requires that the application for such order' must show “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 such order is applied for.” This court has held that “such facts must be shown to exist at the time the order is made.” Roosevelt v. Land & River Co. 108 Wis. 653, 658, 84 N. W. 157. The extent of the showing made on such application in the case at bar is “that the summons and complaint herein were delivered to” the constable “for service on said defendant, and that after diligent search he” was “unable to find the defendant within the state or any agent thereof on whom service” could “be made.” Such showing did not satisfy the requirements of the statutes quoted. A valid order of publication was essential to the validity of the judgment against the defendant. Frish v. Reigelman, 75 Wis. 499, 43 N. W. 1117, 44 N. W. 766; Beaupre v. Brigham, 79 Wis. 436, 48 N. W. 596. There is no presumption of the existence of facts essential to give jurisdiction in such a case. Roosevelt v. Land & River Co., supra. The trial court should have granted the application of the defendant and dismissed the action for want of jurisdiction. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the action.