16 S.D. 390 | S.D. | 1902
This is an appeal from an order denying the defendant’s motion to vacate and set aside the judgment in this case, the default entered therein, and the service of the summons in the same. The motion was made upon the following grounds: “First, that no order for the publication of summons, or copy thereof, was served with the summons; second, that no affidavit, on which the said order for publication was based, or copy thereof, was served with the summons; third, that said affidavit and order for publication of summons were not filed with the clerk of said court until the date judgment was ordered in said cause; fourth, that said order for publication of summons is void for the reason it does not show that due diligenge was used, to serve the defendant with said summons personally within this state; fifth, that said order for publication of summons is void for the reason it does not show that plaintiff has a cause of action against the defendant; sixth, that the affidavit on which said order for publication of summons was made does not show that diligence was used to serve the defendant within this state; seventh, that the affidavit on which the said order is based does not show that the defendant
The contention of the appellant that copies of the affidavit and order should have been served with the. summons and complaint is untenable. The statute does not require such service, and hence the failure to so serve them does not in any manner affect the proceedings. Section 1, c. 75, Laws 1893, called to our attention by the appellant, which provides, “and in no case shall a divorce be granted without personal service of the summons * * , * and order of publication, ” is limited to actions for divorce, and does not apply to the case at bar. The contention, therefore, of the appellant that, if the provisions of this section are not held applicable to all cases, it is special legislation, and therefore unconstitutional, need not be considered or decided at this time.- The third ground relied on by the appellant is untenable for the like reason that the law does not require the affidavit and order for publication to be filed with the clerk prior to the publication of the summons, or the service of the same personally upon the defendant; the only requirement as to the the filing being that the complaint must be first filed. Subdivision 5, § 4900, Comp. Laws. A failure, therefore, to file the affidavit and order prior to the time of taking judgment, does not render the proceeding irregular. The appel
It is further cóntended on the part of the appellant that the affidavit does not state sufficient facts to show that the plaintiff had a good cause of action against the defendant, which would authorize an order for the publication of the summons. This contention is not tenable. It is stated in the affidavit of the appellant that a cause of action exists against the defendant in favor of the plaintiff, as more fully appears by the complaint, a copy of which is thereto annexed. It is contended by the appellant that no copy of the complaint was in fact annexed to the affidavit, and that there is no evidence that the original was presented to the judge at the time that he made the order. The court, however, in its order, recites that it satisfactorily appeared by affidavit that a cause of action existed against the defendant in favor of said plaintiff as set forth in said complaint, a copy of which was thereto annexed. This recital of the court in its order must be held conclusive by this court. We have repeatedly held that annexing to the affidavit the complaint, or a copy thereof, and making it a part of the affidavit, is sufficient to establish the existence of a cause of action and that the complaint or a copy in such case becomes a part of the affidavit.
We are of the opinion that the court ruled correctly in denying plaintiff’s motion, and the order appealed from is affirmed.