10 S.D. 491 | S.D. | 1898
This is an appeal from an order vacating and setting aside the judgment, the order of publication, and all proceedings had in the action. On November 6, 1896, the plaintiff issued a summons in the action, and caused a warrant of attachment to issue, under which property of the defendants in Minnehaha county was attached. On November 23rd the plaintiff presented to the circuit court an affidavit for an order
The respondents insist' that the affidavit upon which the order of publication was made is insufficient, in that it fails to show any proof of diligence on the part of the plaintiff to serve the defendants within the state. In this, we are' of the opinion, the respondents are correct. It will be observed that while the plaintiff states the defendants “cannot, after due diligence, be found within the state,” he states no facts showing that any diligence has been used, or any honest effort made, to find them within the state. The plaintiff states, in the language of the statute, that after due diligence they cannot be found. This is not sufficient; the facts showing what efforts to find the defendants in the state have been made must be stated in the affidavit, that the court may judicially determine whether or not there has been proper diligence used. The motion in this case, being a direct attack upon the affidavit, no presumptions can be indulged to sustain it, as is done in cases of collateral attack, when there is sufficient stated to call into exercise the judicial mind. This distinction is drawm by this court in Davis v. Cook, 69 N. W. 18. When the affidavit for the order of publication is directly attacked by a motion to vacate or set aside the judgment, we think the rules laid down by the supreme court of California in Ricketson v. Richardson, 26 Cal. 153, and reaffirmed in Yolo Co. v. Knight, 70 Cal. 432, 11 Pac. 662, should be adopted in determining the sufficiency of the affidavit. In the former case Mr. Justice Sanderson states the rules as follows: “An affidavit which merely repeats the language or substance of the statute is not sufficient. Unavoidably, the statute cannot go into details, but is compelled to content itself with a statement of the ultimate facts, which must be made to appear, leaving the details to be supplied by the affidavit from the facts and circumstances of the particular case. Between the statute and the affidavit there is a relation