Rankin v. Adams , 18 Wis. 292 ( 1864 )

By the Court,

Cole, J.

According to the decision of this court in Slocum v. Slocum, 17 Wis., 150, the affidavit to obtain tbe order of publication in this case was clearly defective by omitting to set forth a cause of action against any defendant, as it should do under the statute. Section 10, chap. 124, R. S. The action is against several defendants, and it is stated in the affidavit that none of them except Bracken can, after due diligence, be found in the state; that their residence is unknown to the affiant, and cannot, after reasonable diligence, be ascertained by him; and further, “ that the subject matter of this action is real property 'in the county and state aforesaid, in which each of the said defendants has or claims an interest actual or contingent, and that the relief demanded consists wholly in excluding the said defendants from any interest or lien in the said real estate.” It is obvious that this is not a statement of the cause of action within the requirement of the statute. Prom it the court or judge granting the order could not know that a sufficient cause of action exists against any one of the defendants. And, in the language of the chief justice in the case above cited, “to authorize service by publication, it should appear by the affidavit not only that the person on whom service is to be made cannot, after due diligence, be found within the state, but it should in a like manner appear that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party in a case mentioned in the subsequent clauses of the section, the cause of action being shown to exist against some other defendant.”

In the case of Slocum, he being a sole defendant, of course the cause of action must have existed against him if it existed at all. And although in the affidavit it was stated that the action was brought for an accounting between the parties, and to remove the cloud upon the title to certain real estate of the plaintiff growing out of a marshal’s sale, yet we deemed that an insufficient statement of the cause of action in respect to the defendant. In this case the nature of the cause of action is not only very imperfectly stated, but it is utterly impossible to know against wbat defendant it exists. Tbis defect in tbe affidavit was material, and went to tbe jurisdiction of tbe judge making the order of publication.

Note. — On a motion for a rehearing, the respondent’s counsel urged that by the language of the statute (sec. 10, ch. 124, R. S.), it is necessary only that it should appear from the affidavit for publication, either “that a cause of action exists against the defendant in respect to whom the service is to be made” or “that he is a necessary party to an action relating to real property in this state;” and that the statute does not require in the latter case, that “ the cause of action be shown to exist against some other defendant.” — The motion for a rehearing was denied. — Rep.

The judgment should therefore have been set aside for' the first reason assigned in the motion. The order refusing to set it aside is reversed, and the cause remanded for further proceedings in accordance with this decision.