22 Wis. 556 | Wis. | 1868
It is objected that the affidavit for an order of publication in this case was defective in two particulars: first, that it was made by the attorney of the plaintiff instead of being made by the plaintiff himself; and second, that no facts are stated in the affidavit showing what diligence was used to ascertain the residence of'the defendant-Schenck. The statute regulating the manner of acquiring jurisdiction over non-resident defendants by publication, provides that in case of publication the court or judge shall direct a copy of the summons and complaint, or, in lieu of the complaint, a notice, to be deposited in the post office forthwith, directed to the person to be served, at his place of residence, unless it appears that such residence is neither known to the party making the application nor can with reasonable diligence be ascertained by him. Subd. 5, section 10, chap. 124, R. S. Row it is said that this statute clearly contemplates that the plaintiff himself shall make the affidavit for an order of publication. Whatever force there might be in this view as an original question, the practice has been in this state, we believe, for the plaintiff or attorney indiscriminately to make the affidavit; and an affidavit made by an attorney was held sufficient by the court in the case of the Farmers’ & Millers’ Bank v. Eldred, 20 Wis., 196. The reports of Rew York show that the practice of attorneys making affidavits for an order of publication has prevailed likewise in that state, under a similar statute. We are therefore disposed to overrule the objection.
Again, it is insisted that the judgment should be reversed because from the order of reference it appears that the referee was required to ascertain the amount due the plaintiff on the note and mortoaffe. but was not directed to
There is nothing in the record to show that Schenck was aggrieved by this irregularity. His proper remedy was to apply to the circuit court to set aside the judgment, furnishing some proof that he was prejudiced by the error in practice. As the record now stands, he cannot avail himself of it in this court for the first time.
By the Court. — The judgment of the circuit court is affirmed. 8