163 N.W. 675 | S.D. | 1917
In the exericse of its power of eminent domain, the plaintiff instituted this case for the purpose of condemning a
In support of the order appealed from, it is contended by said defendant: First, that there is no provision of law authorizing the personal service of summons on a defendant without the state in condemnation proceedings; and, second, that if the law does authorize such service to be made without the state, in order to give the court jurisdiction, the complaint must be served along with the summons.
‘'Provided, that in any case where service may be made on a defendant, b}^ -publication, as provided in this section, the summons*194 and complaint may, at the option of the plaintiff, be in the first instance, served upon the defendant personally without the state, in which event it shall not be necessary to present any affidavit to the court or procure any order for service by publication.”
Defendant contends that, as this provision is an amendment of section 112, C. C. P., it has no application to’ cases provided for by section 868, C. C. P., and that it is still necessary, in any event, to publish the summons in order to get service on a nonresident defendant in condemnation proceedings. With this contention we cannot agree. In the first place, the language used ini chapter 127, Daws 1907, is, broad enough in itself to include and, in express terms, it does include, any case where service may be made on a defendant, by publication. And in the second place the practice in condemnation proceedings is provided for by section 112, C. C. P., except in the particulars especially provided for by section 868, C. C. P., -and, except as modified by section 868, is controlled by section 112, C. C. P., as amended by chapter 127, Laws 1907.
We believe that, where personal service is made on a defendant outside of the state in a condemnation suit that it is essential to the jurisdiction of the court that the petition be served with the summons, and that, unless it is so served, the 'court does not acquire jurisdiction, and a judgment rendered in such a case is void.
The order appealed from is affirmed.