Star v. Mahan

30 N.W. 169, 4 Dakota 213, 1886 Dakota LEXIS 21

• Court: Supreme Court Of The Territory Of Dakota
• Decided: October 4, 1886
• Status: Published

Opinion

L. K. Church, J.

On February 20, 1882, an attachment issued against defendants’ property, and defendants were served by publication. On the twenty-first day of September, 1882, judgment was entered against defendants for $90.35, in Lawrence county. On the twenty-ninth day of April, 1884, the defendants moved to set aside the judgment, and all subsequent proceedings therein, upon the following grounds: “First, that the order of publication of the summons in said action directed and ordered that a copy of the . said summons and complaint be forthwith deposited in the postoffice, directed to the said defendants at their said place of residence, and is defective and insufficient in not directing that each of said defendants should be so served with a copy of said summons and complaint; second, that the said summons and complaint were not forthwith deposited in the postoffice, as directed in said order of publication, but were held and delayed by said plaintiffs for ten days, after said order was so made and filed, before the said summons and complaint were deposited in the postoffice as aforesaid; third, that the affidavit of Seth Bullock in said action, made for the purpose of obtaining publication of the summons therein, and upon which the order was granted, does not state and show the place of residence of both of these defendants, or either of them, and neither does it state and show that they are not residents of this territory, as required by law; fourth, that the summons does not state the time and place of the filing of the complaint herein; fifth, for other good and sufficient reasons.” This motion was made upon the files, records and proceedings in the action. On the thirteenth day of September, 1881, the court overruled the motion. Defendants duly excepted to said order, and this appeal is for the purpose of reviewing said order. The errors relied upon appear from the opinion.

The order for service by publication directed that copies of the summons and complaint be forthwith deposited in the post-office, directed to defendants. This was not done unti] 10 days had expired after making and filing the order, and it is claimed that, in consequence of such delay, the order became a nullity, as it was not complied with. This objection ’will not avail. “Forthwith” is synonymous with “all reasonable dispatch,” and is a question for the court or judge to determine from all the circumstances in the case.

The remaining question to be considered is relating to the manner of stating the time and place of filing the complaint. The statement as to time and place of filing the complaint was £,t the foot of the summons, and not in the body of the summons. It was intended to be a part of the summons. Cook v. Kelsey, 19 N. Y. 413, is precisely this case, and the learned judge well says: “In contracts and other private instruments all that is written and executed at the same time, and upon the same subject-matter, and by the same parties, is considered one document, whether it be in one continuous body, or distinct and separate parts. Why should not the same rule be extended to the summons, especially as the Code was designed to give a preference to substantial over mere formal matters?”

Judgment affirmed.

All concur.