38 Minn. 506 | Minn. | 1888
Under Gen. St. 1878, c. 34, § 15, service of notice of the presentation of the petition in the condemnation proceedings therein provided for can only be made by publication upon nonresident owners or incumbrancers, or those whose residence is unknown; and as we interpret that section, before such constructive-service can be resorted to, the fact of non-residence, etc., must be ascertained and proof thereof duly made by affidavit. The particular provision referred to is as follows: “In all cases where the owner or person claiming an interest in such real property is a non-resident of this state, or where the residence of'such owner or person is unknown, and an affidavit by the agent or attorney of the corporation shall be filed, showing that such owner or person is a non-resident of this-state, or that, after diligent inquiry, his residence is unknown, or cannot be ascertained by such deponent, service of such notice may be made by publication,” etc. It is clear that such “diligent inquiry” and the proof of the fact of non-residence, etc., are required in order to insure personal service in all cases where such service is made necessary, and not until the existence of these statutory conditions is shown by the required proof may service be made by publication. It was-not sufficient, therefore, in this case, that the affidavit of non-residence should be made and filed on the day the petition was presented,, and subsequent to the publication. The service by publication as-made was therefore unauthorized, and no jurisdiction was acquired over the plaintiff. As to the proof of non-residence as a condition of service by publication, the statute does not differ in substance from that providing for the service of summons by publication in-
