Allen v. Richardson

Citations

• 16 S.D. 390
• 92 N.W. 1075
• 1902 S.D. LEXIS 127

Syllabus

<p>1. Copies of the affidavit and order for service by publication of a summons need not be served with the summons and complaint where they are served personally on defendant out of the state, the statute not requiring it. »</p> <p>2. Laws 1893, c. 75, § 1, providing that in no case shall a divorce he granted without personal service of the summons and order of publication, has no application to, and therefore does not, make service of the notice of publication necessary, in other cases.</p> <p>.3. Under Comp. Laws, § 4900, suhd. 5, making no other requirement as to filing except that, where publication of summons is made, the complaint must be first filed, failure to file the affidavit and order for publication till the time of taking judgment is immaterial.</p> <p>4. Under Comp. Laws, § 4900, providing that, where the person on whom service of summons is to be made cannot, after due diligence, be found within the state, and that fact appears by affidavit to the satisfacti on of the court, it may order service by publication, it is authorized to * make the order on plaintiff’s affidavit stating that defendant could not, after due diligence, be found in the state; that the summons was issued and placed in the hands of the sheriff, and by him returned with the indorsement thereon that defendant could not be found in the county; and that plaintiff had been in correspondence with defendant, and had received letters from him, written at a certain place in another state.</p> <p>5. Recital in an order for service by publication of summons that it satisfactorily appeared by affidavit that a cause of action existed against defendant in favor of plaintiff as set forth in the complaint, a copy of which was thereto annexed, is conclusive on appeal that a copy of the complaint was annexed to the affidavit.</p>