Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-01-29

upon which the decisions are numerous and
explicit.
Aside from the well defined practice and
cxpos.tions in New York, and other state.
the ait alton. OF the profession 10 called %
to the case of Ricketson Y. R~ichsrdsou. 50
California reports, page 1l9, which was "a
aet'onto foreclose Q mortgage; audin which
th~atsupreme court held that,as the sections
derogation Of the common A'' law "
they must be strictly pursued in order to
give the court jurisdiction over the per-
son Of the defendant; and that a failure to
comply with the rule prescribed, in any par
~ticular, is fatal where il ia not cured by IN
appearances.
IAN affidavit" said Sanderson c. j.,
+" whics, merely repeats the language Or
substance of the statute lie not sufficient. I'm
avoidably the statute cannot 70 into de-
tails, but is compelled to content itself with
a statement Of the ultimate facts which
must be made to appear, leaving the detail
to be supplied by the affidavit from the
facts and circumstances of the particular
case. Between the statute and the affidavit
there is a relation which is analogous to
that existing between q pleading and the
evidence which supports it. The ultimate
facts of the statute must be proved, so to
speak, by the affidavit, by showing the pro-
batory facts upon which each ulti-
mate fact depends These ultimate facts
are conclusions drawn from the existence of
other facts, to disclose which is the
special Office of the affidavit.
To illustrate: at is not sufficient to state
generally, that, after due diligence, the de-
PENDANT cannot be found within the state
territory, cor that the plaintiff has a
good cause of action against him, or that he
is a necessary party; but the acts constituting
due diligence or the facts showing that he is
a necessary party should be stated. To hold
that q bald repetition Of the statute is suf6-
Gent, i. 10 strip the court or Judge to whom
the application is made ofall judicial func-
lions, and allow the party himself to deter
mine, in his " way, the existence of jur-
isdictional facts, q practice too dangerous to
the rights Of defendants to admit of judicial
federation. The ultimate facts stated in the
statute are to be found, 80 to speak, BY. the
court or judge, from the predatory. facts
publication can be legally entered" \ \
w ASEC ILLS hiLu Vi 6CxVlCC 1S sOukuk, iAS
proceedings should be carefully scrutinized
the law eracted, otherwise its provisions may
lead to gross abuse, and the rights O
person and property made 10 depend upon
the elastic consciences of interested parties.
rather than the enlightened judgment of a
court or judge"
Under section 1O4, and Rule Nv of this
district, what facts as to residence, must ap,
pear by the affidavit to satisfy the court OF
judge?
First-That the person on whom the ser
/ vice is to be made, cannot, after due dill.
gence, be found within the territory. Be.
side asserting this necessary averment il
the affidavit, facts to show fuch diligenct
should be disclosed, or that, absolutely, At
the time, the defendant is not within the
territory.
Secondly-If his residence outside of the
territory is known, it must be stated so that
the order may direct a copy of the summon
and complaint to be forthwith deposited in
the postofice, directed to him, at his plac.
of residence.
Thirdly-If not known then the affidavit
must state that such residence is neither
known to 10 the afiant, nor can NTH reason.
able diligence be ascertained BY him.
And the affidavit besides this necessary
allegation, must state the facts as to tuct
re reasonable diligence in tn.
enquiry after the residence, [Rule w
Furthermore-it must appear by the aft,
davit, to the satisfaction of the court or Judge
that a cause Of action Exists against the de
PENDANT, or that he is a proper party to al
action relating to real properly
in the territory ; and when SO satisfied, by
properly drawn affidavit embracing all tn
requisites, an order may be granted tina
service be made by the publication Of
summons in either Of the cases specified il
the five subdivisions of the section.
And in all cases where publication i
made, the complaint must be first filed an,
the summons, as published, must state tn
time and place Of such filing. In addition
to which statutory requirement, rules XXI
and XIV must be observed.
In Evertson vs. Thomas S How. Pr. r.
As, the objection was that the affidavit va
defective in not proving positively that tn
defendant had property in the state. Parke
j. held the affidavit defective in not shown,
that the defendant had property within tn
state, saying cit is not enough
to state this on information and belief. Thar
is no proof Of the fact. A person may Civ!
such testimony who has no personal knowi
edge on the subject. Mere hearsay, and be
lief founded on it, are not evidence" The
defendant must have property here
in the enumerated cases or tn
court acquires no Jurisdiction to make
the order. If the court has no jurisdiction
to make an order of publication, q judgmen
founded thereon is void.-Fiske v. Ander
son, 33 Barb. II.
An affidavit which states that the defen
dant resides in another state, but that de
ponent is unable to state his present place o
residence therein, is not sufficient. Cook v
Farren. "a Barb. 95; 81 How. Pr. R. 2s6.
The order itself should be carefully pre-
pared BY the attorney who sends or preseat
It. The requisites Of such order may b,
easily found in Abott's Forms, or Fstee'l
Pleadings and Forms.
This cour: will insist upon a strict com
pliance with all the above requisites; and il
must be fully understood that an affidavit
for the publication of . summons. is not o.
such insignifcance that it may be framed q,
careless random, and in any such loose
manner as has generally been the custom