Jenks v. Arms

160 Wis. 171 | Wis. | 1915

KeRwiN, J.

The question here is whether the judgment was void because no service was had upon the defendant. It is not denied that there was good service if the affidavit for an order of publication was sufficient.

Sec. 2640, Stats., provides:

“The order mentioned in the preceding section shall be made by the court or a judge thereof within ten days after the date of the affidavit herein required. The application therefor shall be based upon the complaint, duly verified and filed, and an affidavit, together 'showing the facts required to exist and that the plaintiff is unable, with due diligence, to malee service of the summons upon the defendant in respect to whom such order is applied for. ...”

The complaint is signed by S. M. Marsh as attorney for plaintiff and is made part of the affidavit, so it is plain that Marsh was acting for the plaintiff and made the affidavit as attorney for plaintiff. Tbe affidavit may be made by tbe attorney. Young v. Schenck, 22 Wis. 556. Tbe statute does not require that tbe affidavit be made by any particular person. It requires tbat tbe complaint be duly verified and together witb an affidavit must show tbe facts required to exist. Tbe affidavit under this statute obviously may be made by any person having knowledge of tbe facts, and tbe fact tbat tbe affidavit did not state upon its face tbat it was made on behalf of the plaintiff would not be fatal, although in tbe instant case it does sufficiently appear tbat it was made by tbe attorney for plaintiff.

Some of tbe eases relied upon by appellant are under tbe attachment statute, sec. 2731, which contains an express provision requiring tbe affidavit to be made by tbe plaintiff “or some one in bis behalf.” Wiley v. C. Aultman & Co. 53 Wis. 560, 11 N. W. 32; Maguire v. Bolen, 94 Wis. 48, 68 N. W. 408. But under see. 2640, Stats., no statement tbat tbe affidavit is made on behalf of tbe plaintiff is required, and- it is sufficient tbat tbe affidavit and complaint together show tbe facts required to exist. Bragg v. Gaynor, 85 Wis. 468, 55 N. W. 919.

Tbe affidavit here is in due and proper form except tbat it begins by stating tbat “Romeyn M. Jenlcs, being duly sworn, on oath says tbat be is tbe plaintiff above named and makes this affidavit in bis own behalf.” This affidavit being sworn to by Marsh, who from tbe complaint attached to tbe affidavit appears to be tbe attorney for plaintiff, .the statement in tbe beginning of tbe affidavit is obviously an error which may be disregarded, since all tbe jurisdictional facts are positively stated and sworn to by Marsh, or the affidavit in this regard may be regarded as amended under secs. 2829, 2830, and 3072m, Stats., since it is manifest tbat tbe error was not prejudicial. People ex rel. Kenyon v. Sutherland, 81 N. Y. 1; Silver Peale Mines v. Hanchett, 80 Fed. 990; Hands v. Clements, 11 Mees. & W. 816.

In Torrans v. Hicks, 32 Mich. 301, an affidavit was signed and sworn to by “Charles H. Lee,” bnt began with tbe recital, “Ered B. Lee of said county, being duly sworn, . . and tbe court beld tbat it must be treated in legal effect tbe same as if there bad been no recital of any name in tbe body of tbe affidavit, and tbe recital made disregarded as a clerical error. So we think in the instant case tbe statement in tbe beginning of tbe affidavit may be disregarded as a clerical error or may be treated as amended.

We are convinced tbat tbe court below was right in refusing to vacate tbe judgment.

By the Court. — Tbe order appealed from is affirmed.