Winner v. Fitzgerald

An affidavit for the service of summons by publication in a case arising under subd. 4, sec. 10, ch. 124, R. S. (where the defendant is a nou-resident, or his residence is unknown, but he has property in this state, and the action is on contract, and the court has jurisdiction of the subject of the action), must so describe the property of the defendant within the state that the officer signing the order of publication may be able to see that it is such property as is liable to be seized on attachment or execution; otherwise the proceeding is void.

APPEAL from the Circuit Court for Milwaukee County. This action was brought against Maurice Fitzgerald as administrator of the estate of Garrett M. Fitzgerald, deceased, for the amount due on a note executed by said Garrett in his life time, and allowed in plaintiff’s favor by tbe commissioners appointed to adjust claims against said estate. , The court ordered service of the summons by publication, upon an affidavit of one of plaintiff’s attorneys, which was in substance as follows : that a summons bad been issued in the action; that a cause of action existed in favor of the plaintiffs and against the defendant; that the defendant could not, after due diligence, be found in the state, and his residence was unknown, but that he had property in this state, and the action was on contract, and the court had jurisdiction of the subject thereof. The affidavit further states the means which had been used to ascertain the residence and address of the defendant; but it does not further specify or describe the property of defendant situate in this state. Afterwards, upon due proof of publication of the summons, and of no answer or demurrer received, judgment was rendered against the defendant for the amount claimed, with interest and costs. A subsequent motion of defendant’s attorney to set aside the judgment and the order of publication, &c., was denied; and defendant appealed. 1. The provision of the statute in reference to the service of summons by publication is new, and must be strictly pursued. Eallett v. Bighters, 13 How. Pr. R, 43-45. It must appear by proper averments in the affidavit, how the cause of action arose, or upon what it is founded; and a mere statement, in general terms, that a cause of action exists, is not sufficient. Slocum v. Slocum, 17 Wis., 150 ; Bankin v. Adams, 18 id., 292. Pacts must also be stated from which the officer can decide for himself whether the court has jurisdiction. It must also distinctly appear that the defendant has property in this state liable for the claim on demand. Jarvis v. Barrett, 14 Wis., 591. The averment in the affidavit that the defendant has property in this state cannot, by any fair construction, be held to mean that he has property in this state belonging to Garrett M. Pitzgerald. Nor does it show that he has property subject to forced sale. 2. By the theory of our statutes, an administrator must reside in this state, and if he leaves it his administration ceases, and the probate court should be called upon to appoint an administrator de bonis non to close up- the estate and be sued, if a suit should be ordered. The attachment process was never designed to apply to cases of executors or administrators in this state. 8. The county court of Milwaukee'county had jurisdiction exclusive of any other court to settle the whole estate and to compel the application of all the assets in the hands of the administrator to the payment of debts against it, so far as they were applicable thereto. And the statute expressly provides that when commissioners shall be appointed for examining accounts against the estate, no action of this kind shall be commenced against the administrator, and that the county court may from time to time order a distribution of assets and payment of debts. R. S., ch. 101, secs. 15, 40, 62; Price v. Dietrich, 12 Wis., 626. in support of the sufficiency of the affidavit for publication, cited Bawdon v. Corbin, 8 How. Pr. R., 416; Boche v. Ward, 7 id., 416; Slocum v. Slocum, 17 Wis., 150; Bankin v. Adams, 18 id., 292. 2. Our statute allows the bringing of a suit against an administrator on a claim allowed by the commissioners, after the time limited by the probate court for the payment of debts has expired. R. S., ch. 101, secs. 15, 62.