The defendant was convicted in the municipal court of the city of Minneapolis of nonsupport of his wife, upon her complaint under R. D. 1905, § 4934, and he appealed from the judgment. His defense was that the complainant was not his legal wife. The record shows that the complainant was married to the defendant in July, 1904; that she was married to William Brannan, who is still living, before she married the defendant; that on April 9, 1903, in’ an action in the district court of the county of Hennepin, wherein she was plaintiff and her former husband was defendant, she was by the judgment of the court granted an absolute divorce from him on the ground of desertion. Such judgment has never been set aside. The defendant in this case claims that the judgment is void because the court had no jurisdiction to award it, for the reason that there was in the divorce action no legal service of the summons, which was by publication.
The order of the court directing service of the summons by publication was based upon the return of the sheriff, showing that the defendant could not be found within the county, and the affidavit of the plaintiff, which, so far as here material, was in these words: “ * .* *
The order for publication of the summons recited that: “It appearing to the satisfaction of the court by annexed affidavit, copy of the complaint, summons, and sheriffs return therein, that this action is brought for a divorce in one of the cases prescribed by law, and that this defendant cannot be found within the state of Minnesota after due and diligent effort has been made and that the residence of the said defendant is verily believed to be at the city of Apizaco, Estado de Elaxcala, commonwealth of Mexico.” The findings of fact and order for judgment of the court recited that the summons was duly served on the defendant by publication, as appeared by affidavit and proof of service on file.
The contention of the defendant is that it appears upon the face of the judgment roll in the divorce actiomthat the order of publication was void. This is the only question in this case. The statute in force when the divorce was granted (G. S. 1894, section 4796), provided that the summons in a divorce action should be served on the defendant personally; but, if personal service could not well be made, the court might order the service of the summons by publication as in other actions. The court, in the divorce action, necessarily found by its order of publication that personal service of the summons could not well be made, and its order and judgment are valid, unless it affirmatively appears upon the face of the judgment roll that personal service of the summons could have well been made. McHenry v. Bracken, 93 Minn. 510, 101 N. W. 960.
AYhile the affidavit for publication did not state the conclusion that personal service could not well be made on the defendant, yet it did state that the defendant could not be found in the state of Minnesota, and that, as the affiant believed, his residence was in a foreign country, Mexico, at a designated city thereof, and that a true copy of the sum
We hold that the return of the sheriff and the affidavit of the plaintiff were sufficient to justify the conclusion of the court that personal service of the summons could not well be made, and that its order that it Te made by publication was valid.
Judgment affirmed.