#### Jenks, Respondent, vs. Arms, Appellant.

*February 9*

March 2, *1915.*

*Process: Service by publication: Affidavit: By whom made: Requisites: Clerical error.*

1. The affidavit provided for in see. 2640, Stats., may he made hy plaintiffs attorney, and no statement that it is made on behalf of the plaintiff is required.

2. Where such an affidavit was subscribed by S. M., who, as shown by the attached complaint, was plaintiff’s attorney, and all the jurisdictional facts were positively stated therein and sworn to by him, a recital at the beginning of the affidavit that “R. J., being duly sworn, on oath says that he is the plaintiff above named and makes this affidavit in his own behalf,” did not render the affidavit insufficient. Such error, being manifestly not prejudicial, may be disregarded under secs. 2829, 3072to, Stats., or the affidavit may be treated as amended in that regard under sec. 2830.

*172Appeal from an order of the circuit court for Clark county: Jakes O’Neill, Circuit Judge.

*Affirmed.*

Tbis is an appeal from an order refusing to vacate a judgment on service obtained by publication. The following is the affidavit:

“State oe WISCONSIN, *)*County of Clark. 3 ss’

*“Romeyn M. denies,*being duly sworn, on oath says that he is the plaintiff above named and makes this affidavit on his own behalf; that the above entitled action has been commenced by the issuance of a summons therein, of which a copy is hereto annexed; that the plaintiff’s complaint herein is duly verified and has been filed with the clerk of the circuit court of said Clark county, and that a copy thereof is hereto attached; that a cause of action exists in favor of the plaintiff against defendant; that the said defendant, *James 0. Arms,*is a nonresident of the state of Wisconsin; that said defendant has property within said county of Clark and state of W'is1-consin; and that the cause of action set forth in the complaint arose within said county and state and that the court has jurisdiction of the subject of the action; that said plaintiff is unable with due diligence to make service of the summons in said action upon said defendant, and that said defendant cannot be found within the state of Wisconsin, although diligent effort to find him and serve upon him the said summons has been made as appears by the return of the sheriff of said Clark county indorsed upon said summons; that said defendant’s postoffice address and residence is 4120 Chicago avenue, Minneapolis, Hennepin county, Minnesota.

“That the property owned within said state of Wisconsin by defendant consists of an interest in a farm located in said Clark county, described as follows, to wit: the north half of the southwest quarter and the southwest quarter of the southwest quarter of section number twenty-four (24), township number twenty-six (26) north, range number one (1) west, and certain moneys and credits in the hands of the Citizens’ State Bank of Loyal, Ellen A. Hephner, Walter J. Rush, and R. E. Andrews, the amount of which is unknown to plaintiff.

“S. M. Marsh.”

*173The complaint referred to in the affidavit and thereto attached is signed “S. M. Marsh, Plaintiff’s Attorney,” verified and filed. The order of publication is in proper form and recites, “It appearing to my satisfaction from the affidavit of the plaintiff above named, the certificate of return of the sheriff on the summons 'in said action, as well as from the verified complaint of the plaintiff on file in this action, . . .” The order further states the facts proper to appear therein and orders the service of summons by publication, or, at the option of the plaintiff, that a copy of the summons and complaint be delivered to the defendant personally without the state of Wisconsin. It further appears that the summons and complaint were duly delivered to and left with the defendant in the state of Minnesota.

The cause was submitted for the appellant on the brief of W. *J. Rush,*attorney, and *Homer G. Ciarle,*of counsel, and for the respondent on that of *S. M.*Marsh, attorney, and *Alfred L.*Devos, of counsel.

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 *174attorney 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.

*175In *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.