Slocum v. Slocum

By the Court, DixoN, O. J.

Tbe ^affidavit to obtain tbe order *151 for publication is defective in not showing that a cause of action exists against tbe defendant. To authorize service by publication and deposit in tbe post office, it must appear by affidavit not only tbat tbe person on whom service is to be made cannot, after due diligence, be found within tbe state, but it shall in like manner appear that a cause of action exists against the defendant in respect to whom the service is to he made, . or that he is a necessary or proper party to an action relating to real property in this state. R. S., ch. 124, sec. 10.

As tbe publication is asked in respect to a sole defendant, tbe cause of action, if one exists, must be against him; and tbe affidavit should show it. In'such a case it is clearly not enough tbat it appears tbat the action concerns real property in this state; for why proceed to service by publication merely because tbe defendant is interested in such property, no cause of action being shown respecting it ? Tbe provision for publication and service by post upon “ a necessary or proper party to an action relating to real property in this state,” is obviously intended to meet tbe case of an absent or non-resident defendant who has or claims a lien or interest as described in subdivision four of tbe same section, tbe primary cause of action being against another, who is or must be served as tbe principal defendant.

Order affirmed.