Mills v. Smiley

Citations

• 9 Idaho 317
• 76 P. 783
• 1903 Ida. LEXIS 49

Syllabus

<p>Writ of Assistance — Motion to Dismiss Appeal from Order Refusing to Set Aside — When not Granted. — When writ of assistance is granted and issued, one who was not a party to the action at the time of such issue may move to set the order aside and appeal from an order denying the motion.</p> <p>Motion to Set Aside Order Granting Writ of Assistance Will not be Granted When. — When it appears from the record that the moving party has not placed his deed upon record, he is not a necessary party to the action under the provisions of section 4520 of the Revised Statutes, Idaho, and his motion to set aside order granting writ will be denied.</p> <p>(Syllabus by the court.)</p> <p>Service op Notice op Appeal — Service op Summons by Publication— Affidavit for Publication — Order op Publication — Jurisdiction.</p> <p>1. Where a judgment and decree of foreclosure has been entered and a sale thereunder has been made to a person not a party to the action, in satisfaction of such judgment, and a writ of assistance has been issued against a person not a party to the foreclosure suit, it is not necessary that a notice of appeal from the order granting such writ be served on all the parties to the foreclosure action.</p> <p>2. An affidavit for publication of summons which states “that due and diligent search has been made for the defendants, and that said defendants cannot be found within the state of Idaho,” without stating the facts which constitute such “due and diligent search,” is insufficient to authorize the making an order for publication and an order and publication made thereon is without jurisdiction, and void.</p> <p>3. An affidavit in such case should show whether the defendant is a resident or nonresident of the state, and his last known place of residence, or if unknown such fact should appear.</p> <p>4. In case of service by publication upon a nonresident or absent defendant where his place of residence is known, the order must direct a copy of the summons and co