In an action in a justice's court, the justice may, within a year from the date of the filing of the complaint, issue as many alias summonses as may be demanded by the plaintiff.88 A judgment based upon an alias summons issued without any return of the original, and which imperfectly states the nature of the cause of action, and fails to notify the defendant to appear and answer at the office of the justice, while irregular, cannot be attacked collaterally.89 An alias summons that substantially complies with the original is not defective as to form, under section 4141 of the Revised Statutes of 1887, providing that, if the summons is returned without being served, the clerk may issue an alias summons in the same form as the original.90 Section 408 of the Code of Civil Procedure, providing for the issuance of an alias summons by the clerk, does not impair the power of the court to authorize it to be withdrawn for the purpose of further service, or for its service by publication."1 § 1056. Service of summons.-After the issuance of the sunmons by the clerk, the next step is to have it properly served, together with a copy of the complaint. Allowing an action to rest without serving the summons for two years and eight months after the summons is issued is such a want of diligence as to justify the court in dismissing the action.92 Though section 408 of the Code of Civil Procedure provides that a clerk cannot issue an alias summons more than a year after the commencement of the action, the original summons may be served at any time within three years from the commencement of the action, and the court may order the returned summons to be served or may issue a new summons. If notice is given of a motion to dismiss an action for want of prosecution before summons is served, and the plaintiff then serves the summons, and at the end of ten days takes a default, but judgment is not entered up, the entry of the default does not preclude the court from dismissing the action. The dismissal 93 88 Cal. Code Civ. Proc., § 847. 89 Dore v. Dougherty, 72 Cal. 232, 1 Am. St. Rep. 48, 13 Pac. 621. 90 Hill v. Morgan, 76 Pac. 323, 9 Idaho, 718. 1 Rue v. Quinn, 137 Cal. 651, 66 Pac. 216, 70 Pac. 732. 92 Grigsby v. Napa Co., 36 Cal. 585, 95 Am. Dec. 213. As to degree of diligence required in service of summons, see Murray v. Gleeson, 100 Cal. 511, 35 Pac. 88. 93 Hibernia Savings & Loan Soc. v. Cochran, 141 Cal. 653, 75 Pac. 315; Rue v. Quinn, 137 Cal. 651-7, 66 Pac. 216, 70 Pac. 732. 94 96 takes effect by relation back to the time of the service of the motion. Most of the codes provide that when the action is against two or more defendants jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants.95 The entry of judgment against a defendant who has been served after the overruling of his demurrer to the complaint, without at the same time entering judgment against a co-defendant not served, is in accordance with the statute. So where S. and B. admitted "due service" of summons in an action against them and others, the court thereby acquired jurisdiction of them, and as to them the judgment was valid." Where a defendant, on foreclosure of a mortgage, filed a cross-bill seeking foreclosure of a mortgage held by him as prior to plaintiff's, it was not necessary for him. to serve summons on his co-defendants, they having been served with summons by plaintiff; and hence the cross-complainant's motion for a continuance, on the ground that no process had been served on the co-defendants, no showing of diligence or excuse for delay being made, was properly refused.98 Any writ or order and all other papers in any civil suit or proceeding may be served by telegraph in California." In Oregon, service of complaint and notice upon a defendant before the same are filed in the office of the clerk of the court is a good service.100 Under the North Dakota practice, unless the summons in an action is served in the manner prescribed by law within thirty days after the issue of a warrant of attachment, the writ becomes void, and will be set aside on motion. 101 A summons, otherwise in due form, in which the defendants are designated only by their firm name, is irregular, but not absolutely void, and may be amended in the trial court so as to show the names of the partners. Such a summons, when issued, is sufficient to sustain an attachment.102 94 Grigsby v. Napa County, 36 Cal. 585, 95 Am. Dec. 213. 95 Cal. Code Civ. Proc., § 414. See, also, Cal. Code Civ. Proc., § 579. 96 Edwards v. Hellings, 103 Cal. 204, 37 Pac. 218. 97 Sharp v. Brunnings, 35 Cal. 528. 98 Rodgers v. Parker, 136 Cal. 313, 68 Pac. 975. 99 Cal. Code Civ. Proc., § 1017. As to service of summons and complaint under Colorado statute of 1885, see Gwillim v. First Nat. Bank, 13 Colo. 278, 22 Pac. 458. 101 Rhode Island etc. Trust Co. v. Keeney, 1 N. Dak. 411, 48 N. W. 341; McLaughlin v. Wheeler, 2 S. Dak. 379, 50 N. W. 834. See Gribbon v. Freel, 93 N. Y. 93; Blossom v. Estes, 84 N. Y. 615. 102 Gans v. Beasley, 4 N. Dak. 140, A merely formal amendment of a complaint does not require a new service on a defendant who had not appeared to the original complaint.103 § 1057. Mode of service in general.-A summons may be served by the sheriff of the county where the defendant is found, or by any other person over the age of eighteen not a party to the action.10 In Oregon, however, it must be served by the sheriff or his deputy, or by a person specially appointed by him. or by the court or judge;105 and this is also the rule in Colorado.106 Under the Colorado statute providing that summons shall be served by the sheriff or by one appointed by him, and the statute providing that, whenever the sheriff shall be a party to the cause, the coroner shall execute all process therein, a plaintiff cannot serve his own summons.107 § 1058. Redelivery and service after return.-After a summons has been served on some of the defendants, and returned, the court may order it delivered to the plaintiff for further service on other defendants in the same or another county. A redelivery of the summons without an order of the court is an irregularity of which the opposite party may avail himself by direct attack; but such irregularity will not render the service void.108 § 1059. Service by sheriff, effect of. In a collateral attack on a judgment, the return of the sheriff that he served a copy of the summons will be held equivalent to a return that he served a copy certified by the clerk.109 Where judgment of foreclosure was obtained on a defective service, and the premises sold under the judgment to a party who was, at the time of such purchase, cognizant of the fact of such defective service, and also that the defendant was a married woman, and where the defendant has a valid defense to such action, the judgment will be set aside.110 Courts should presume that the sheriff served all proc 59 N. W. 714. Service of a summons on Sunday is void. Hauswirth v. Sullivan, Mont. 203, 9 Pac. 798; McLaughlin v. Wheeler, 2 S. Dak. 379, 50 N. W. 834. But see Savings etc. Soc. v. Thompson, 32 Cal. 347; Whitney v. Blackburn, 17 Or. 564, 11 Am. St. Rep. 857, 21 Pac. 874. 103 White v. Hinton, 3 Wyo. 753, 30 Pac. 953, 17 L. R. A. 66. 104 Cal. Code Civ. Proc., § 410. 105 Or. B. & C. Codes, § 54. 106 Colorado (Mills') Code, § 39. 107 Toenniges v. Drake, 7 Colo. 471, 4 Pac. 790. 108 Hancock v. Preuss, 40 Cal. 572. 109 Brown v. Ison, 51 Cal. 615. 110 McMillan v. Reynolds, 11 Cal. 372. esses within his jurisdiction, where no place of service is stated.111 Where the return of a sheriff states that he served defendants with a certified copy of the complaint, it will be presumed that the copy was certified by the clerk, and not by some one else.112 Where the official return of the sheriff shows personal service of the summons upon the defendant, an affidavit by the defendant made after a great lapse of time showing that he had no recollection of the service of summons is entitled to but little weight as against the official return of the sheriff, and a finding in such case by the court below that the defendant was personally served with the summons and a certified copy of the complaint will not be disturbed on appeal.113 Where, in Montana, several defendants reside in the same county, and a copy of the complaint is served on one of them with the summons, a return of service need not show that defendants all reside in the county.114 A sheriff's return is not traversable, nor can it be attacked collaterally, even if he has been guilty of fraud or collusion.115 Personal service of writs and process can only be made by delivering a copy to the party upon whom the service is required. In the absence of the statute it will be necessary to show the original with the seal of the court, and also to deliver a copy.116 A summons cannot be served on defendant's attorney in fact.117 In making service of a summons, and in the return of such service, the provisions of the statute must be shown to have been substantially followed by the officer; otherwise, the proceedings cannot be supported upon a direct appeal.118 Where the record itself shows that no service of summons has been had upon a defendant, as required by the statute, the court is without jurisdiction of the person of the defendant, and a judgment rendered under such circumstances is a nullity.119 A description in a sheriff's return of city lots by numbers referring to the official map is sufficient. 120 111 Crane v. Brannan, 3 Cal. 192. 112 Curtis v. Herrick, 14 Cal. 117, 73 Am. Dec. 632. As to sufficiency of service and return, see Thomas v. Colorado Nat. Bank, 11 Colo. 511, 19 Pac. 501. 113 People v. Dodge, 104 Cal. 487, 38 Pac. 203. See McCoy v. Vanness, 98 Cal. 675, 33 Pac. 761. 114 Mantle v. Casey, 31 Mont. 408, 78 Pac. 591. 115 Egery v. Buchanan, 5 Cal. 56. 116 Edmondson v. Mason, 16 Cal. 388. 117 Drake v. Duvenick, 45 Cal. 455, 118 People v. Bernal, 43 Cal. 385. 119 Davidson v. Clark, 7 Mont. 100, 14 Pac. 663. 120 Welch v. Sullivan, 8 Cal. 165. § 1060. Service by deputy.-The general rule of the common law is that officers who exercise judicial functions cannot act by deputy, but those who exercise merely ministerial functions may, without express authority to that effect. In the absence of statutory provisions as to the appointment of deputies by constables, the common-law rule applies, and constables may act by deputy in the exercise of their ministerial functions.121 Courts cannot know an under-officer, and the act and return on a summons of a deputy sheriff is a nullity, unless done in the name and by the authority of his principal. 122 Where a summons was served by the deputy sheriff, and returned, with the following signature to the return: "Elijah F. Cole, D. S.," and judgment was rendered by default, it was held that the judgment was null and void; the return should have been made in the name of the sheriff by the deputy.123 § 1061. On a minor.-If a father sues his infant son, residing with him, and the statute requires the summons to be served personally on the infant, and also on the father, a service on the infant alone is sufficient, for the father has notice of the suit without service.124 § 1062. On corporations.-Where the return of the sheriff showed that he had served the summons in the action "upon James Street, one of the proprietors of the company," it was not sufficient evidence of service to give the court jurisdiction, it not appearing that Street was president or head of the corporation, or secretary, cashier, or managing agent thereof.125 A sheriff's return that he served the summons on the president and secretary of the company is prima facie evidence that the persons named in the return were such officers. 126 But if the service was upon the president of a foreign corporation which does no business within the state, and is in no manner a resident of the state, the service is of no avail.127 121 Jobson v. Fennell, 35 Cal. 711. 122 Joyce v. Joyce, 5 Cal. 449; Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089. 123 Rowley v. Howard, 23 Cal. 401. 124 Brown v. Lawson, 51 Cal. 615. 125 O'Brien V. Shaw's Flat & Tuolumne Canal Co., 10 Cal. 343. See, also, Blane v. Paymaster Min. Co., 95 Cal. 524; 29 Am. St. Rep. 149, 30 Pac. 765; Mathias v. White Sulphur Springs Assoc., 17 Mont. 542, 43 Pac. 921; Blodgett V. Schaffer, 94 Mo. 652, 7 S. W. 436; Dickerson v. Burlington etc. R. R. Co., 43 Kan. 702, 23 Pac. 936. 128 Rowe v. Table Mountain Water Co., 10 Cal. 441. 127 Knapp v. Wallace, 50 Or. 348, 126 Am. St. Rep. 742, 92 Pac. 1054. |