of service showing service on defendant by delivering a copy of the process to his wife, a person of suitable age and discretion, at the usual place of his residence, is a sufficient compliance with the statute, since even on direct attack it would be presumed that the wife resided with her husband, and that her residence would be that of his usual abode.168 The California statute makes no provision for service upon any person other than the defendant himself. As we have already noted, however, some of the states permit service upon members of the defendant's family, or persons above a certain age, found at the defendant's residence. 9171 Substituted service of process must show the facts which confer jurisdiction;169 as, that the party cannot be found, and that therefore service is made on his wife.170 Service at the dwelling of a defendant on a male over fourteen years of age, "who resides with the family," is service on such male person "of the family.' A return which showed that the defendant could not be found, and that a copy of the summons was delivered to a "member of the family" at his usual place of abode in the county, does not confer jurisdiction, because of its failure to show that the substituted service of the summons was made at the defendant's usual place of abode in the state, in whatever county it might be.172 FORMS OF SUMMONS. 1070. Summons in action on contract for payment of money only. [STATE AND COUNTY.] A. B., Plaintiff, V. C. D., Defendant. Form No. 355. [COURT.] No.... The People of the State of California send greeting: To . . ., defendant: You are hereby required to appear in an action brought against you by the above-named plaintiff in the superior court of the state of California, in and for the city of . . . 168 Powell v. Nolan, 27 Wash. 318, 67 Pac. 712, 68 Pac. 389. 169 Caro Brothers v. Oregon etc. R. R. Co., 10 Or. 510. 170 Hass v. Sedlak, 9 Or. 462. 171 Carland v. Heineborg, 2 Or. 75. 172 Swift v. Meyers, 37 Fed. 39, 13 Sawy. 583. and county of . and to answer the complaint filed therein, within ten days (exclusive of the day of service) after the service on you of this summons, if served within this county; or if served elsewhere, within thirty days. The said action is brought to recover the sum of dollars, gold coin of the United States, due from defendant to plaintiff upon [a certain promissory note made by the defendant on the . . . day of . ., 19.., to said plaintiff, for . . . dollars, payable. . . . . months after date], particularly described in the complaint; also for interest thereon, at the rate of . . . per cent per month. And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiff will take judgment against you for said sum of . . . dollars, in gold coin of the United States, interest and costs. Given under my hand and the seal of the superior court of the state of California, in and for the city and county of ..., this ... day of . . ., 19.. A. B., Clerk. § 1071. The same-Summons in justice's court. The People of the State of California send greeting: To .. defendant: You are hereby required to appear in an action brought against you by the above-named plaintiff, in the justice's court of. . . township, county of . . ., state of California, and to answer before the justice at his office in the said township, the complaint filed therein, . . . within five days (exclusive of the day of service) after the service on you of this summons--if served within the township in which this action is brought; or if served out of said township, but in said county, within ten days; or within twenty days if served elsewhere. The said action is brought to recover [... dollars principal, and interest at the rate of . . . per cent per month from the . . . day of . . ., 19.., upon a promissory note made by the defendant to the order of A. B., dated the . . . day of . 19. ., and payable . . . months after date, and which note was indorsed and delivered to the plaintiff by said A. B.]. And you are hereby notified that if you fail to so appear and answer said complaint, as above required, said plaintiff will take judgment against you for the sum of . . . dollars, together with costs... Make legal service and due return hereof. .. The People of the State of California send greeting: defendant: You are hereby required to appear in an action brought against you by the above-named plaintiff, in the superior court of the state of California, in and for the . . ., county of . . ., and to answer the complaint filed therein, within ten days (exclusive of the day of service) after the service on you of this summons-if served within this county; or if served elsewhere, within thirty days. The said action is brought to obtain a decree of this court for the foreclosure of. . . certain mortgage described in the said complaint, and executed by the said . . . on the . . . day of . . ., 19.., to secure the payment of a certain .. . . ., that the premises conveyed by said mortgage may be sold, and the proceeds applied to the payment of said ; and in case such proceeds are not sufficient to pay the same, then to obtain an execution against said . . . for the balance remaining due, and also that the said defendant, and all persons claiming by, through, or under . . . may be barred and foreclosed of all right, title, claim, lien, equity of redemption, and interest in and to said mortgaged premises, and for other and further relief, as will more fully appear by reference to the complaint on file herein. And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiff will apply to the court for the relief demanded in the said complaint. [Attestation, date, and signature as in No. 355.] CHAPTER XL. SERVICE OF SUMMONS BY PUBLICATION. § 1073. When permitted. The codes generally provide for the service of summons by publication in certain cases. Usually, this mode of service may be resorted to in the following cases: 1. When the defendant resides out of the state; 2. When the defendant has departed from the state; 3. When the defendant cannot be found within the state, or he conceals himself to avoid service; 4. When the defendant is a foreign corporation, having no managing or business agent, cashier, or secretary within the state. In such cases, the court or judge may make an order that the service be had by publication of the summons.1 It is now well settled that this procedure is constitutional, and such a statute is not invalid. because it includes in its provisions proceedings purely in personam.3 The basis of jurisdiction, however, acquired by such service is the power of the state over persons and property within its territory. It can only reach a non-resident by virtue of his having property within the state; therefore service by publication is sufficient to inform him of the object of proceedings taken where the property is once brought under the control of the court by seizure or some equivalent act. But where the suit is brought to determine his personal rights and obligations,-i. e. where it is merely in personam, such service is ineffectual for any purpose, and personal judgment thereon is invalid, and no title to property passes by a sale thereunder.* Statutes providing for this mode of acquiring jurisdiction of a defendant are in derogation of the common law, and must be strictly followed in order to give the court jurisdiction; and 1 Cal. Code Civ. Proc., § 412; Alaska Codes, pt. 4, ch. 4, § 47; Ariz. Civ. Codes, par. 1329; Idaho Rev. Codes, 4145; Mont. Rev. Codes, § 6520; Nev. Comp. Laws, §§ 3125, 3126; Or. B. & C. Codes, §§ 820, 822; Utah Rev. Stats., § 2948; Wash. Bal. Codes, $4877; Wyo. Rev. Stats., §§ 3552, 3705. 2 Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. 3 Perkins v. Wakeham, 86 Cal. 580, 21 Am. St. Rep. 67, 25 Pac. 51. 4 Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Alliance Trust Co. v. O'Brien, 32 Or. 335, 50 Pac. 801, 51 Pac. 640. 5 Ricketson v. Richardson, 26 Cal. 149; Cohn v. Kember, 47 Cal. 145; Columbus Screw Co. v. Warner Lock Co., 138 Cal. 446, 71 Pac. 498; Northcut v. Lemery, 18 Or. 316; Odell v. Campbell, 9 Or. 298; Park v. Higbee, 6 Utah, 416, 24 Pac. 524; Cordray v. Cordray, 19 Okla. 36, 91 Pac. 781. where the statute thus provides a method, it is not only to be strictly followed, but must also be followed to the exclusion of any other method not clearly provided. In some states, the statute does not abrogate the common-law rule requiring personal service of summons in actions in personam. This procedure is constitutional only when the action is for the purpose of affecting the status of the defendant. If the object of the action is to subject the property of the defendant within the state to execution issued on a judgment against him, such property must be attached at the inception of the proceeding. After attachment and a publication of summons in the manner provided by statute, the action becomes in effect a proceeding in rem against the property attached, and the judgment is in rem against such property, and not in personam against the defendant. A judgment against a defendant not personally served with process, and whose property has not been attached, is void for want of due process of law. The existence of any one of the conditions specified by the statute is not alone sufficient. In addition thereto, it must also appear by the affidavit or the verified complaint on file that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to the action." The proceeding, however, is sufficient on collateral attack, if the affidavit tends to prove the facts required to be shown, and if the court adjudges it sufficient by acting upon it, although there may be defects in it which could have been taken advantage of in direct proceedings.10 The necessary facts appearing by affidavit. or otherwise, it is only necessary that one of the grounds enumerated in the statute exist in order that publication may be made." No presumption will be indulged in favor of jurisdiction acquired by publication.12 Where, however, a court has jurisdiction. of the subject-matter, the question as to whether it acquires jurisdiction over the defendants served by publication is one which the court had authority to pass upon.13 And it has been held that Cooper v. Reynolds, 10 Wall. 319, 19 L. Ed. 931; Bauer v. Widholm, 49 Wash. 310, 95 Pac. 277; Pennoyer v. Neff, 95 U. S. 723, 24 L. Ed. 565. 7 Silver Camp Min. Co. v. Dickert, 31 Mont. 488, 78 Pac. 967, 67 L. R. A. 940. 8 Pennoyer v. Neff, 95 U. S. 728, 24 L. Ed. 565; Belcher v. Chambers, 53 Cal. 635; Denny v. Ashley, 12 Colo. 165, 20 Pac. 331; Hanscom v. 11 De Corvet v. Dolan, 7 Wash. 365, 35 Pac. 72, 1072. 12 McMinn v. Whelan, 27 Cal. 309. 13 Mines etc. Soc. V. Superior Court, 91 Cal. 101, 27 Pac. 532. |