§ 1063. On partners.-The return of a sheriff that he served the summons on one Pendleton, one of the partners and associates of the company, is prima facie evidence that Pendleton was such partner and associate.128 Where the summons was issued against Adams & Co., and served on C. B. Macy, and nothing appeared to connect Macy with Adams & Co., judgment by default could not be sustained.129 It seems that a misdescription of an administrator as "executor" in the summons and entry of default, in an action to enforce a street assessment against the property of a decedent, will not render void a judgment enforcing the assessment upon such property, as against the administrator of the estate, if the complaint charges him as administrator, and the affidavit of service of summons shows that he was served as administrator.130 § 1064. Abuse of process. - Breaking and entering into defendant's dwelling, and breaking open the door to his private room, where he is confined in bed with sickness, in order to serve a summons in a civil action, is an abuse of process by the sheriff.131 § 1065. Service, by whom made. The 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. A copy of the complaint must be served with the summons, upon each of the defendants. When the summons is served by the sheriff, it must be returned with his certificate of service, and of the service of a copy of the complaint where such copy is served, to the office of the clerk from which it issued. When it is served by any other person, it must be returned to the same place with an affidavit of such person of its service, and of the service of a copy of the complaint, where such copy is served.182 The service of a summons by a person not a sheriff is "according to the course of the common law."'133 § 1066. Husband and wife defendants.-The service of summons on one spouse, in an action to enforce a mechanic's lien 128 Wilson v. Spring Hill Quartz Min. Co., 10 Cal. 445. 129 Adams v. Town, 3 Cal. 247. 130 Lyons v. Roach, 84 Cal. 27, 23 Pac. 1026. 131 Foley v. Martin, 142 Cal. 256, 100 Am. St. Rep. 123, 71 Pac. 165, 75 Pac. 842. 132 Cal. Code Civ. Proc., § 410. against community property, is not the commencement of the action under section 4869 of Ballinger's Annotated Codes and Statutes.1 134 Where the husband is made a necessary party in actions against the wife, he must not only be named in the complaint, but he must be served.1 135 1067. Personal service-Mode of.-In making a personal service of a summons, the provisions of the statute regulating such service must be observed and followed by the service officer. 13 The summons must be served by delivering a copy to the defendant personally, excepting in the following instances: 1. In a suit against a corporation; 2. In a suit against a minor under the age of fourteen years; 3. In a suit against an insane person; 4. In a suit against a county, city, or town. In these cases the summons must be served on the person designated in the statute.137 In California, personal service is made by delivering a copy to the party upon whom the service is required, together with a copy of the complaint. In Oregon, service must be on the defendant personally, or, if he be not found, some person of the family above the age of fourteen years at the dwellinghouse or usual place of abode of the defendant.138 In Utah, service may be made on the defendant personally, or by leaving a certified copy at his usual place of abode with some suitable person, of at least the age of fourteen.139 In Colorado, where service of process requires the reading of the writ, the whole of it must be read; merely stating the material parts is not enough.140 In a suit against a corporation where service was made upon. M., as president, and C., as secretary, it was held sufficient without proof beyond the mere return that those persons were such officers;141 but service "upon J. S., one of the proprietors of the company," was held insufficient to give the court jurisdiction. A baggage-master, or one who merely sells tickets, is not the 134 Powell v. Nolan, 27 Wash. 318, 67 Pac. 712, 68 Pac. 389. 135 McDonald v. Parish, 136 Cal. 301, 68 Pac. 817. 138 People v. Bernal, 43 Cal. 385. 137 Cal. Code Civ. Proc., § 411; Alaska Codes, pt. 4, ch. 5, § 52; Ariz. Civ. Code, par. 1327; Idaho Rev. Code, § 4144; Mont. Rev. Code, §§ 65196525; Nev. Comp. Laws, §§ 3128, 3129; Or. B. & C. Codes, § 820; Utah Rev. 139 Laws 1884, pp. 201, 202; People v. House, 4 Utah, 382, 10 Pac. 843. 140 Crary v. Barber, 1 Colo. 172. 141 Rowe v. Table Mountain Water Co., 10 Cal. 444. "managing agent" of a railroad company;142 but a person acting under power of attorney for an insurance company located elsewhere is a "managing agent." 143 In a suit against a mining company, service cannot be had on the foreman of one of its mines who is under the orders of and makes his reports to its general agent;144 but the service upon the vice-president of a corporation is sufficient, although the return does not show that the president could not be found in the county.145 The fact that a defendant corporation has knowledge of the pendency of a suit against it will not dispense with the necessity for proper service.146 A service of summons on one of the principal officers of a corporation, at its principal office or place of business, gives the court jurisdiction of the corporation, regardless of whether the officer served resided in or had an office in such county;147 and it is immaterial in the case of such service whether the corporation has representatives in the county where service is had or not.148 If the suit is against a minor living within the state, service must be made on such minor personally, and also on his father, mother, or guardian; or if there be none such within the state, then on any person having the care or control of such minor or with whom he resides or in whose service he is employed.149 A return of service of summons, showing that it was served on minors "by delivering to each of them a true and correct copy thereof," is insufficient, in that it does not show that it was served, "personally" by the sheriff. 150 In a suit against a person judicially declared to be of unsound mind, service must be made by delivering a copy to such person, and also to his guardian, if a guardian has been appointed.151 The rule that the appointment and appearance of a guardian ad litem without a personal service of summons upon the incom 142 Flynn v. Hudson R. R. Co., 6 How. Pr. 308. 143 Bain v. Globe Ins. Co., 9 How. Pr. 448. 144 Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Colo. 46, 13 Am. St. Rep. 204, 20 Pac. 771. 145 Comet Min. Co. v. Frost, 15 Colo. 310, 25 Pac. 506. 146 Osborne v. Columbia etc. Alliance Corp., 9 Wash. 666, 38 Pac. 160. 147 Weaver v. Southern Oregon Co., 30 Or. 350, 48 Pac. 171; Farrell v. Oregon Gold Co., 31 Or. 475, 49 Pac. 876. 148 Bailey v. Malheur Irr. Co., 36 Or. 59, 57 Pac. 910. 149 Cal. Code Civ. Proc., § 411; Or. B. & C. Code, § 55. 150 Harris v. Sargeant, 37 Or. 43, 60 Pac. 608. 151 Cal. Code Civ. Proc., § 411; Or. B. & C. Codes, § 55. petent is void does not apply where the incompetent person. appears by a general guardian.152 In New York, service of summons on an insane person who has no committee must be by personal service on such person. 153 Where an action is against a county, city, or town, service must be made on the president of the board of supervisors, president of the counsel or trustees, or other head of the legislative department thereof.154 In Washington and Oregon, service must be had on the clerk of such public corporation.155 Where there are two parties who make adverse claim to be the officers of such public corporation, the proper person to be served is the officer de facto, the one having actual possession of the office.158 After a corporation has ceased to do business, a service of summons on a stockholder who had been a director and trustee is of no binding force on the other stockholders.157 Under the California Code, where two or more persons are associated in any business, transacting such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name; the summons in such cases being served on one or more of the associates, and the judgment in the action shall bind the joint property of all the associates in the same manner as if all had been named defendants and had been sued upon their joint liability.158 This provision, however, is to be strictly construed, and judgment cannot be rendered against parties not served in a suit not strictly within the provisions of this section.159 Thus where an action is brought against two defendants alleged to be partners, but sued by their individual names, to enforce a partnership liability, and the summons is served on only one of them, who makes default, the plaintiff is not entitled to a judgment against both defendants.180 In 1907, this section was amended so that such service is made sufficient to sustain judgment and execution 152 Redmond v. Peterson, 102 Cal. 595, 41 Am. St. Rep. 204, 36 Pac. 923. 153 Heller v. Heller, 1 Code Rep. (N. S.) 309. 154 Cal. Code Civ. Proc., § 411. 155 Or. B. & C. Codes, § 55; Wash Bal. Codes, § 4875; Downs v. Board of Directors, 4 Wash. 309, 30 Pac 147. 156 Berrian v. Methodist Soc., 4 Abb. Pr. 424. See Rowe v. Table 158 Cal. Code Civ. Proc., § 388. 159 Davidson v. Knox, 67 Cal. 143, 7 Pac. 413; Hamner v. Ballantyne, 16 Utah, 439, 67 Am. St. Rep. 643, 52 Pac. 770. 160 Feder v. Epstein, 69 Cal. 457, 10 Pac. 785. upon all the common property, and also upon the individual property of the parties actually served. § 1068. Time for service. The statutory requirement that service of summons be made within a certain period is mandatory.1 161 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.162 § 1069. Substituted service. The summons can be served "on the defendant personally, or by leaving a certified copy thereof at his usual place of abode, with some suitable person of at least the age of fourteen. And an alternative writ of prohibition may be so served. 16 163 Under section 4874 of Ballinger's Annotated Codes and Statutes, authorizing such service to be made by any person other than the plaintiff, the person making the service is agent for the plaintiff only for that purpose, and cannot waive any of the terms of the summons, unless specially authorized.164 Section 3514 of the Revised Statutes of 1899, providing for substituted service of a summons on an individual by the leaving of a copy at his usual place of residence, with some member of the family over fourteen years of age, does not authorize such substituted service on one who is temporarily within the state for the purpose of carrying out a temporary employment.165 In the case of a married man, the house of his usual abode, for the purpose of the service of summons, is the house wherein his wife and family reside.16 Under the presumption that a permanent abode once acquired continues until shown to have been changed by the acquisition of another, a judgment and decree based on such service would not be disturbed under a direct attack.167 Proof 161 Linden Gravel Min. Co. Sheplar, 53 Cal. 245. V. 162 Grigsby v. Napa County, 36 Cal. 585, 95 Am. Dec. 213. 163 Utah Laws of 1884, pp. 201, 202, § 268, subd. 8; People v. House, 4 Utah, 382, 10 Pac. 843. For the mode of transmitting summonses, and other writs, orders, or papers, by telegraph, for service in any place, and mode of service and return, see Cal. Code Civ. Proc., § 1017. 164 Washington Mill Co. v. Marks, 27 Wash. 170, 67 Pac. 565. 165 Honeycutt v. Nyquist Peterson & Co., 12 Wyo. 183, 109 Am. St. Rep. 975, 74 Pac. 90. 166 Northwestern etc. Hypotheek Bank v. Ridpath, 29 Wash. 687, 70 Pac. 139. 167 Id. |