Sueterlee v. Sir

25 Wis. 357

• Court: Wisconsin Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Cole, J.

A number of objections are taken to the judgment in this case. It is said that the county court never acquired jurisdiction of the defendant. The summons was served by publication, a copy of the summons and of the complaint being sent to the defendant by mail. It is claimed that the affidavit for the order of publication is defective in some particulars. One is, that it does not show that any effort was made to find the defendant within the state. The affidavit states that the defendant could not “with due diligence be found within the state;” that he resided at Chicago, Ill., and was not a resident of this state. We have held that the affidavit need not show what diligence was used to find the defendant, but that the general statement that he' could not after due diligence be found was sufficient. The Farmers and Millers' Bank v. Eldred, 20 Wis. 196 ; Young v. Schenck, 22 id. 556.

Again, it is insisted that the affidavit is defective because it does not show that a cause of action existed against the defendant. The order for publication states that a cause of action in favor of the plaintiff exists against the defendant, and that it is founded on contract. The statute makes this order the evidence of the existence of these facts. • Chap. 409, Gren. Laws of 1865.

It is further claimed, that the record does not contain any legal proof of the publication of the summons. Publication of the summons was in fact legally made, but, through inadvertence, the affidavits of publication and of posting of the summons and complaint were not filed ■ at the time judgment was entered. The court, upon motion, allowed this proof to be supplied after the appeal was taken, and that those affidavits might be filed as of the day the judgment was entered. We suppose it was entirely competent for the court to supply this omission. Sec. 38, chap. 125, R. S. The only question is, as to what effect the supplying this proof should have upon the appeal. We think the only effect would be to give the appellant the right to dismiss the appeal without costs. 'It certainly can furnish no ground for reversing the judgment. The record now shows proper publication of the summons, and that the court had acquired jurisdiction. If the appellant had applied to this court for leave to dismiss the appeal because the.proof of publication of summons had been supplied since it was taken, it would have been dismissed without costs. But, instead of doing, this, he has seen fit to argue and submit the case upon the alleged errors in the record. And, since there are none which would warrant a reversal of the judgment, it must be affirmed.

By the Gowrt.— Judgment affirmed.