· MARTIN 'v.·POND. 19
tiling of an affidavit of the plaintiff, his agent or attorney, with the clerk of
the court, stating that he believes that the defendant is not a resident of the
state, or cannot be found therein, and that he has deposited a copy of the
summons in the post-oilice, directed to the defendant at his place of 1·esidence,
unless it is stated in the affidavit that such residence is not known to the af-
iiant, and stating the existence of one of the cases hereinafter specified, the
service may be made by publication of the summons by the plaintiff or his
attorney in either of the following cases."
Now, in the second foreclosure suit——which alone I shall consider-
a summons was issued and returned "not found," and an affidavit filed
as follows: P
"L. M. Stewart, being first duly sworn, says that ne ls attorney for the
plaintiff in the above-entitled action; that he believes that the defendants are -
, not residents of the state of Minnesota, and cannot be found therein; that he
has deposited copy of the summons in said action in the post-oiiice at Minne-
apolis, Minnesota, directed to each ofsaid defendants, at Osage Agency,
Kansas, their place of residence, and had prepaid the legal postage thereon;
that the subject of this action is real property in the state of Minnesota, to-
wit, for the foreclosure of a mortgage on real estate situated in the county of
Hennepin aforesaid; and that the said defendants have, or claim to have,
a lien upon or interest in said real estate, and the relief demanded in said ac-
tion consists in excluding the said defendants from any interest or lien .
therein. " ,
` · Now, this is, in form, all that the statute requires. But it is shown
by thetestimony that Osage Agency, Kansas, was not the place of resi-
dence of defendants; that they resided at Oskaloosa, Iowa; and this mis-
take, it is claimed, invalidated the amdavit, and rendered the publica-
tion void; and that the defendants were never brought into court, are
not bound by this decree, and still retain the right to redeem. Mr.
Stewart, in stating the place of residence of defendants, and in mailing
toithem copies of the summons, acted upon the only information he
could obtain, and that information was such as to justify the action of
— any reasonable and prudent man. So the question is narrowed to this:
Will such a misstatement, though believed _to be true, and founded
upon reasonable information, avoid the entire proceedings? Was it ju-
’ risdictional? Under the decision of the supreme court in a somewhat
similar case, (Cooper v. Reynolda, 10 Wall. 308,) I must answer the ques-
tion in the negative. That was an attachment case. The aflidavit there-
· for was defective. But notwithstanding, thesupreme court sustained
the judgment. Justice MILLER, speaking for the court, says, on page
319: »
"The aiiidavit is the preliminary to issuing the writ. It may be a defect-
ive aindavit, or, possibly, the otiicer whose duty it is to issue the writ may
have failed in some manner to observe all the requisite formalities; but the
writ being issued and levied, the affidavit has served its purpose. and though —
a rsvisory court might see in some such departure from the strict direction of
the statute sufficient error to reverse the judgment, we are unable to see how
that can deprive the court of the jurisdiction acquired by the writ levied upon
the defendant’s prope1·ty." ·
Thestatute does not require that the affidavit be true. The case must
` be one in which serviceby publication can be had, and the aiiidavit is