Wiley v. Carson

Citations

• 15 S.D. 298
• 89 N.W. 475
• 1902 S.D. LEXIS 6

Syllabus

<p>1. An objection that a complaint was not made a part of the affidavit for publication of summons, and that therefore the affidavit failed to show a cause of action against defendants, was untenable, where the affidavit referred to the complaint, and the order of publication recited that it was made on affidavit and complaint.</p> <p>2. Comp. Laws, § 494, provides for the appointment of notaries public who “shall have power * * * to administer oaths.” Section 503 requires the notary to provide an official seal, and deposit an impression with the secretary of the state. Section 504 requires him to deposit an impression of his seal, together with his official signature, with the clerk of the courts of his county. Section 501 provides that the notary shall keep a record of his proceedings, which record, “certified by the notary under seal,” shall be. competent to prove certain facts. Held, that the affixing by a notary of his seal to the verification of a complaint, not being expressly required by statute, was not absolutely essential to its validity as a verified complaint.</p> <p>3. The court sitting in a county in which a complaint is verified can take judicial notice of the fact that the notary whose name is subscribed to the verification is duly authorized to act as such.</p> <p>4. A publication of summons reciting the complaint as filed March 7th, whereas it was not in fact filed until March 8th, was not ground for setting aside a default, where the complaint was filed prior to the first publication, as required by Comp. Laws, § 4900, subd. 5, and the mistake in the summons could not have misled defendants.</p>