Merchants' National Union v. Buisseret

Summons—Service by Publication—Sufficiency of Affidavits.—Affidavits for publication of summons against a defendant which show inquiry at his last known place of residence within the state, and information thereat that he is out of the state, with refusal of the informants to state his precise whereabouts, are sufficient to justify the conclusion of the court that such defendant cannot after due diligence be found within the state, and to support its order for service of the summons upon him by publication.

Id.—Want of Jurisdiction for Personal Judgment Against Nonresident.—Assuming that service of summons by publication against a resident of the state will support a personal judgment against him, yet where the affidavits for publication and the order of the court make it appear that defendant was not within the state at the time of the order for publication, and the order recites that he was a nonresident of the state, there was no jurisdiction under the showing made to authorize the entry of a purely personal judgment against the nonresident defendant.

Id.—Judgment Only Authorized to Support Proceeding in Eem—• Attachment.—A judgment against a nonresident can have no validity or effect at all, except in support of a proceeding in rem against the property of the defendant in this state, such as a valid attachment thereof, in so far as the judgment may be satisfied out of the property held under attachment.

Id.—Absence of Property to be Affected.—Where there is not shown to be property of a nonresident within this state, which the court has jurisdiction to cause its judgments and decrees to operate upon, there is clearly no authority for the entry of a money judgment against him upon service of summons by publication.

Id.—Invalid Attachment—Insufficient Affidavit.—An attachment of the defendant’s property is invalid where the affidavit does not state, as required by the statute, “that the attachment was not sought to hinder, delay or defraud any creditor or creditors of defendant,” but used the word “judgment” in lieu of the word “attachment,” employed in the statute.

Id.—Eight to Attachment Statutory.—The right to an attachment and the mode of procedure for obtaining it are the creatures of statute, depending for their proceedings and regularity upon the terms of the code.

Id.—Authority of Clerk—Ministerial Duty—Proper Affidavit Essential to Writ.-—While the clerk performs but a ministerial duty in issuing the writ of attachment, he has no authority to issue it where there is no statement in the affidavit of the facts plainly required to be set forth therein.

Id.—Error in Denying Motions to Vacate Judgment and Attachment.—As no valid attachment had been levied against defendant’s property at the time when judgment was entered, and this fact was made to appear by the files and records of the court, the defendant was entitled to have his motion to set aside the judgment and also his motion to vacate and dissolve the attachment granted, and orders denying such motions must be reversed.