107 N.W. 40 | N.D. | 1906
Action to compel the vendee to specifically perform a contract for the sale of real estate. The district court entered a decree of specific performance in accordance with the relief demanded in the complaint. The defendant appeals from the judgment and requests a review of the entire case in this court, under section 5630, Rev. Codes 1899.
It is generally held that a mere statement in affidavits, to be used as a basis for orders of publication, that due diligence was used to find the defendant, is not alone a statement of fact authorizing a publication. Such statements are deemed conclusions. The facts must be stated, and the court draws the inference therefrom whether due diligence has been exercised or not. What constitutes due diligence is therefore generally held to be a question of law. The affidavit in question, homever, states other matters besides the statement that the defendant could not be found within the state after due diligence to find him had been used. It-states that inquiry was made of three persons as to the defendant’s whereabouts, and these persons each stated that his last known residence
The district court found the facts stated in the affidavit to be true. It became satisfied judicially of the existence of such facts and made the order of publication. The statement of the persons inquired of, and that of the affiant of his own knowledge, that Bean was a resident of the city of New York, is not a conclusion of law, but a statement of a fact. In such a case they were not stating a deduction from facts, but a fact. We think due diligence was strictly shown, within the rule announced in Simensen v. Simensen, 13 N. D. 305, 100 N. W. 708. That case, however, is distinguished from this one. There was no positive showing of facts in that case. All was upon information and belief, and there was a lapse of several months between the time when the showing was made by the return of the sheriff and the making of the affidavit and order. The affidavit in this - case goes much further than the affidavit commented on in Carlton v. Carlton, 85 N. Y. 314, relied on by counsel. In that case there was no statement that due diligence had been used. The court was asked to infer due diligence from a statement of nonresidence. The court refused to do so, and gave as reasons for its refusal the well known fact that persons residing in one state may do business in a border state and may be served there if diligence be used. In this case the positive fact of residence in the distant state of New York is stated, and the fact stated that after due diligence, with a statement of what it consisted of, the defendant cannot be found within
We conclude that the court had jurisdiction to make the order, and that the service by publication was valid, even against a direct attack, which this is not. The rule is that the recitals in an order of publication that the facts stated in an affidavit are true to the satisfaction of the court are deemed a judicial finding that such facts exist. This is true as to the facts showing due diligence, although there be but slight evidence of diligence. If it fairly appears that reasonable diligence has been used, the order of publication will be upheld. It is only when the affidavit leaves it as a matter of speculation as to what diligence was used that the findings in such an order will not be upheld. Orr v. Currie (Sup.) 35 N. Y. Supp. 198. That the order of publication in this case is valid is supported by the following cases: Marx v. Ebner, 180 U. S. 314, 21 Sup. Ct. 376. 45 L. Ed. 547; Kennedy v. N. Y. Life Ins. Co. 101 N. Y. 487, 5 N. E. 774; McDonald v. Cooper (C. C.) 32 Fed. 745; Rue v. Quinn et al. (Cal.) 66 Pac. 216; Coughran v. Germain (S. D.) 87 N. W. 527; Coughran v. Markley (S. D.) 87 N. W. 2; Pike v. Kennedy (Or.) 15 Pac. 637; Crouter v. Crouter, 133 N. Y. 55, 30 N. E. 726; Allen v. Richardson (S. D.) 92 N. W. 1075; Woods v. Pollard, 14 S. D. 44, 84 N. W. 214. The fact that it is not shown that the summons was placed in the hands of the sheriff for service is not fatal to the judgment. The means by which due diligence is shown is not confined to any particular method of procedure. It is the fact that due diligence of some kind is shown that gives validity to the order of publication.
The objection that the affidavit and order for publication were not filed until one day after the complaint was filed is fully met by the statement that the statute does not require the filing thereof when the complaint is filed. Allen v. Richardson, supra. The trial court allowed the plaintiff to recover interest on the unpaid purchase money from May 1, 1902. This was about 24 days before the plaintiff tendered a deed and abstract to the defendant. The contract contained no provision as to payment of interest, if payment was not made when plaintiffs had complied with all the conditions required before it became incumbent on the defendant to pay the unpaid purchase price. The contract did not provide that defendant should go into possession of the land before the deed was delivered. By a new agreement made after the written con
The judgment is affirmed.