#### Slocum vs. Slocum.

An affidavit for the service of summons by publication against a sole defendant, which, states that the action is for an accounting between the parties, and to remove a cloud upon the plaintiff’s title to real estate, which the defendant claims to hold under a marshal’s sale upon execution, while the plaintiff claims that the execution debt was fully paid before the sale, does not show “that a cause of action exists against the defendant,” within the meaning of the statute. R. S., ch. 124, sec. 10.

The provision (in said section 10) for publication and service by post upon “a necessary or proper party to an action relating to real property in this state,” relates to an absent or non-resident defendant who has or claims a lien or interest as described in subdivision *&*of the same section, the primary cause of action being against another, who must be served as the principal defendant.

APPEAL from tbe Circuit Court for *Kenosha*County.

Tbe plaintiff obtained from a court commissioner an order for tbe service by publication of tbe summons in tbis action, upon an affidavit wbicb stated tbat tbe defendant could not, after due diligence, be found in tbis state, and was not a resident thereof, but of tbe state of New York, and tbat tbe action was for an accounting between tbe parties, and to remore a cloud from tbe plaintiff’s title to certain real estate; and tbat tbe defendant claimed to bold said real estate under a marshal’s sale upon execution, and tbe plaintiff claimed tbat tbe judgment on wbicb said execution was issued was paid in full before tbe sale. Tbe defendant afterwards appeared specially for tbe purpose, and moved to set aside tbe order for publication. Tbe motion was granted, and the plaintiff appealed.

*J. J. Pettit,*for appellant,

contended, among other things, tbat under tbe code there is no such thing as a special appearance of a party for tbe purposé of a motion only, in an action commenced by summons; that in such an action ány appearance by tbe defendant is voluntary, and is equivalent to “personal service of a summons on him.” R. S., chap. 124, sec. 14, last clause.

*O. S. & F. H. Head,*for respondent. .

*By the Court,*

DixoN, O. J.

Tbe ^affidavit to obtain tbe order *151for publication is defective in not showing that a cause of action exists against tbe defendant. To authorize service by publication and deposit in tbe post office, it must appear by affidavit not only tbat tbe person on whom service is to be made cannot, after due diligence, be found within tbe state, but *it shall in like manner appear that a cause of action exists against the defendant in respect to whom the service is to he*made, . or *that he is a necessary or proper party to an action relating to real property in this state.*R. S., ch. 124, sec. 10.

As tbe publication is asked in respect to a sole defendant, tbe cause of action, if one exists, must be against him; and tbe affidavit should show it. In'such a case it is clearly not enough tbat it appears tbat the action concerns real property in this state; for why proceed to service by publication merely because tbe defendant is interested in such property, no cause of action being shown respecting it ? Tbe provision for publication and service by post upon “ a necessary or proper party to an action relating to real property in this state,” is obviously intended to meet tbe case of an absent or non-resident defendant who has or claims a lien or interest as described in subdivision four of tbe same section, tbe primary cause of action being against another, who is or must be served as tbe principal defendant.

Order affirmed.