Woods v. Pollard

Citations

• 14 S.D. 44
• 84 N.W. 214
• 1900 S.D. LEXIS 6

Syllabus

<p>1. Where an affidavit for publication, after averring the use of due diligence to secure personal service, refers to the sheriff’s affidavit, stating his failure, after diligent search, and inquries of various persons likely to know defendant’s whereabouts in the county of his residence, to secure personal service on him within his county, and defendant’s removal to another state, and states fully the circumstances of defendant’s removal, and other facts showing inability to find defendant, it shows sufficient diligence to justify an order for publication.</p> <p>2. An appeal from an order denying a motion to vacate a judgment on the ground that an affidavit for publication did not show a cause of action against defendant cannot be considered, where such ground was the court’s reason for its decision, as the appeal is simply an appeal from the reasons given by the court for its decision.</p> <p>3. A party in whose favor an order is made cannot appeal, where he is not thereby aggrieved.</p> <p>4. Where a verified complaint showing a cause of action is referred to in the affidavit for publication, and is presented to the court on the application, it is sufficient, within Comp. Laws, § 4900, authorizing publication, where it appears by affidavit that defendant cannot be found, and that a cause of action exists against defendant, whether or not the complaint was in fact on file in the clerk’s office, and though it may be inadvertently stated to be on file in the affidavit.</p> <p>5. A verified complaint showing a cause of action against a defendant is an affidavit, within Comp. Laws, § 4900, authorizing publication, where it appears by affidavit that defendant cannot be found, and that a cause of action exists against him.</p>