218 N.W. 110 | Minn. | 1928
The complaint in the action was filed August 21, 1926, and summons issued and delivered to the sheriff for service. On August 24 the sheriff made return on the summons that, after due and diligent search, he had been unable to find the defendant within the county and that defendant could not be found therein. On April 12, 1927, plaintiff's attorney made and filed affidavit for publication of the summons, and thereupon the summons was published, commencing April 13, 1927. On September 9, 1927, defendant appeared specially and moved that the action be dismissed as to him. The motion was thereafter heard and denied, and this appeal followed.
1. The appeal presents the one question of whether or not the service of the summons by publication, as here made, was valid so as to give the court jurisdiction over this defendant.
There was a delay of over seven months from the time the sheriff's return of not found was made before the affidavit for publication was filed. The plaintiff had a reasonable time after the sheriff's return was received in which to file affidavit for publication and commence publication of the summons. That time commenced to *582
run from the date the sheriff's return was received. The facts, that during the interval some search was made for the defendant, and that at one time an attorney, not shown to have been attorney for or in any way representing this defendant, may have made the remark that he was going to interpose an answer for defendant, do not furnish justification for a delay of seven months. What is a reasonable time is ordinarily a question of fact. It becomes a question of law when only one reasonable inference can be drawn from the facts shown, when the time is manifestly either reasonable or unreasonable. Some indication of what the lawmakers of this state have considered a reasonable time, under somewhat similar circumstances, may perhaps be gathered from G.S. 1923, §§ 9199, 9342. The sheriff's return speaks as of the date when it is made. Conditions may change and where, as here, there is no showing of actual nonresidence or absence, and reliance must be placed upon the failure to find the defendant within the county, there should be no presumption of continuance of that condition. The affidavit for publication and the publication of the summons were not supported or sustained by the sheriff's return made more than seven months prior thereto. The delay was manifestly an unreasonable time. Haney v. Haney,
2. The affidavit for publication is subject to the same objection held fatal in the case of Gilmore v. Lampman,
The statute requires the affidavit to state "either that he has mailed a copy of the summons to the defendant at his place ofresidence, or that such residence is not known to him." The affidavit here states neither fact. It does state that affiant has mailed a copy of the summons to "the last known residenceaddress" of the defendant. The statement in the affidavit is not the same nor synonymous with the words used in the statute.
Service by publication is in derogation of the common law, and all statutory requirements must be strictly complied with. D'Autremont v. Anderson Iron Co.
3. It is urged that defendant was a resident of and present within the state and county at the time of the attempted service, and that service by publication upon such a resident is not due process. That service of summons by publication upon a resident of the state, who is present therein, may be made when such person either conceals himself for the purpose of avoiding service or when, after the exercise of due diligence in searching for him, neither he nor any place of his residence can be found in the state at which service can be made, appears to be settled by the cases of Van Rhee v. Dysert,
It is not necessary for the decision in this case to determine whether or not the record sustains the finding of due diligence in the search and inquiry for defendant. For the manifestly unreasonable delay in filing affidavit for and commencing publication of the summons, and for the defects in the affidavit for publication hereinbefore pointed out, the order appealed from must be and is reversed and the case remanded with directions to the court below to enter its order dismissing the action as to the defendant Edward R. Sager.
Reversed with directions.