De Fyn v. Power

OweN, J. The order of publication was fatally defective. See. 2640, Stats., provides that the order shall (1) direct that service of the summons be made by publication, etc.; (2) that on or before the day of the first phblieation the plaintiff deposit in a specified postoffice a copy of the summons and complaint addressed to the defendant at his post-office, to be therein named; or, (3) a direction that such deposit may be omitted because the defendant’s postoffice address cannot be ascertained. It will be seen that with reference to the mailing of the summons and complaint the order must contain one of two directions. If the postoffice of the defendant is known, then the order must direct that the summons and complaint be deposited in a specified post-office, addressed to the defendant at his postoffice address. [344] If bis address cannot be ascertained, then tbe order must, in express terms, direct that sucb deposit may be omitted because tbe defendant’s postoffice address cannot be ascértained. . Tbe order in tbis action directed that “plaintiffs or their attorneys deposit a copy of tbe summons and complaint in tbe above entitled action, be sent to tbe last known address of tbe defendants, if tbe same can be ascertained, and if not, a mailing of a copy of tbe summons and complaint to be omitted.” Clearly tbis is a glaring and substantial failure to comply with statutory requirements jurisdictional in tbeir nature. O'Malley v. Fricke, 104 Wis. 280, 80 N. W. 436. While tbe service of tbe summons and complaint was properly set aside, no reason is perceived why tbe action should be dismissed. Tbe action was brought to set aside a fraudulent conveyance of real estate. Tbe summons and complaint were .delivered to tbe sheriff, who returned that tbe defendants could no't be found within tbe state of Wisconsin. Tbe summons and complaint were then filed with tbe clerk of tbe court and a notice of lis' pendens was filed in tbe office of tbe register of deeds. Up to tbis point there were no irregularities in tbe proceedings. No reason is perceived why tbe plaintiffs cannot, upon the summons and complaint already filed, procure a valid order of publication and complete service upon tbe defendants. If tbe notice of lis pendens has served to frustrate the defendants’ alleged scheme to defraud plaintiffs of tbeir lands, it should not be made inefficacious by a dismissal of tbe action. While writs of attachment were set aside under similar circumstances in Cummings v. Tabor, 61 Wis. 185, 21 N. W. 72, and Anderson v. Coburn, 27 Wis. 558, tbe considerations justifying that course do not require tbe dismissal of tbe action here. Tbe execution of a writ of attachment constitutes an interference with property rights. If tbe writ is void tbe interference is unlawful. To continue its validity, service in the principal action must be made within a reasonable time. Obviously, [345] an action brought to preserve plaintiff’s property rights from loss through fraudulent machinations is entitled to more considerate treatment. The order should be affirmed so far as it sets aside the service of the summons and complaint and reversed in so far as it dismisses the action. By the Gowrt. — That portion of the order setting aside the service of the summons and complaint is affirmed, and that part of the order dismissing the action is reversed. Appellants to recover costs in this court.