Cook v. Farmer — 12 Abb. Pr. 359

Majority

p. 359

COOK a. FARMER.

Supreme Court, First District;

General Term, June, 1861.

Headnote

Service by Publication.—Affidavit of Absence.

An affidavit made to obtain an order for service of summons by publication is insufficient to sustain an order which directs publication merely, without directing service by mail, unless such affidavit shows the fact of plaintiffs inability to discover the place of residence of the defendant sought to be served.

An order made on such a defective affidavit is without jurisdiction.

Appeal from an order denying motion that purchaser complete purchase on sale in partition.

This was an action brought for the partition of lands. One of the defendants, Josephine A. Demphill, was an infant, and resided in California. By the plaintiff’s affidavit to obtain an order for service by publication, it appeared that “ Josephine Demphill resided in California, but her present place of residence therein deponent was unable to state.” On this affidavit, the judge made an order that it appeared to his satisfaction that the defendant Josephine could not, after due diligence, be found

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within the State, and that it appeared, in like manner, that the residence of Josephine Demphill neither was, nor could with reasonable diligence be, ascertained by the party making the application; and he directed publication of the summons, without directing service on the party.

After judgment and sale, the purchaser refused to complete his purchase; and a motion to compel him to do so was denied by Mr. Justice Ingraham at special term. (See. the motion reported, 11 Ante, 40.)

From his decision this appeal was taken.

Mr. Arnoux, for the appellants.

Mr. Parsons, for the respondent.

—The objection to the title is, that one of the infant heirs-at-law of the former owner, and a tenant in common of the premises sold, was not properly served with process.-

At the time of the commencement of this action she resided in California, and was and still is an infant under the age of twenty-one years. An order for^he service of the summons upon her, by publishing the same, was made by Judge Boosevelt, upon the affidavit of the plaintiff, an aunt of the infant defendant. His order did not direct a deposit of the summons and complaint in the post-office, directed to the defendant, at her place of residence. The affidavit did not show, nor did it appear in any way, that the residence of the infant was unknown to the plaintiff, and could not with reasonable diligence be ascertained by her. (Code, § 135.) The only statement in the affidavit bearing upon the question is, “that George Demphill and Josephine Demphill (the infant) resided in the State of California, but their present place of residence therein deponent is unable to state,”—implying that she had known where they had resided at one time, without its appearing that they had removed at all from such place of residence. The affidavit is entirely consistent with the fact that they had resided, within the knowledge of the deponent, at Benicia, or any other given place, and

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still resided there, the individual making the affidavit having no reason to suppose or believe that they had removed, but excusing herself for denying present knowledge of their residence, by reason of the want of that present knowledge, which is the result of an actual and recent visit to their domicil.

But, conceding that the affidavit was honestly made, and the plaintiff had no knowledge or belief as to the place of residence of the absentees, the statute was not complied with, for the want of evidence that their residence could not be ascertained “ with reasonable diligence.” It is palpable that slight diligence only would have been necessary to ascertain where they resided. But the statutory proceedings for acquiring jurisdiction of absent defendants must be strictly complied with to give the court jurisdiction. The jurisdiction is strictly statutory, and can only be acquired in the mode prescribed by the statute. (Hallett a. Righters, 13 How. Pr., 43 ; Brisbane a. Peabody, 3 Ib., 109; Kendall a. Washburn, 14 Ib., 380.) Even admission of the service of process out of the State is ineffectual to give the court jurisdiction m personam. (Litchfield a. Burwell, 5 How. Pr., 341 ; and see Evertson a. Thomas, Ib., 45.) As the infant could not convey her estate, she cannot by any covenant confer jurisdiction upon, the court, or ratify or approve the order of sale. Her power of attorney to Hr. Lamar is a nullity.

The order at special term must be affirmed with costs.

Footnotes

* Present, Clerke, Sutherland, and Allen, JJ.