the court will presume, in order to sustain a service by publication, that a minor was over the age of fourteen, in which case no service is required on his guardian.14

These statutes do not provide that the judge may order summons to issue; his only power is to order a summons which has already been issued to be served in a particular manner." 15 Thus, where the order for the publication of a summons precedes the issuance of a summons, a judgment by default based thereon is void.18

19

§ 1074. Affidavit for order. The service of a summons by publication made without an affidavit for publication is void. The affidavit is necessary to bring into exercise the jurisdiction of the court to make the order.17 Where the statute requires the affidavit to be made by the plaintiffs or by one of the plaintiffs, an affidavit made by the plaintiffs' attorney is sufficient.18 The affidavit may be made by plaintiff's attorney if it states that he is such attorney, even though he does not appear of record as plaintiff's attorney.1 The affidavit must contain a statement of some fact which would be legal evidence, having some tendency to make the fact of jurisdiction appear for the court to act upon, before he has any jurisdiction to make the order. 20 And this statement of facts must be positive, and not one of opinion.21 An affidavit is sufficient if it sets forth substantially in the language of the statute enough of the ultimate facts recited in the statutes as reasons for the publication.22 So, where the statute provides that the affidavit set forth the fact that the defendant has property in the state, an averment that the suit is one to foreclose a mortgage on property in the state executed by the defendant is sufficient.22

14 Emeric v. Alvarado, 64 Cal. 529, 2 Pac. 418.

15 People v. Huber, 20 Cal. 81. 16 Coffin v. Bell, 22 Nev. 169, 58 Am. St. Rep. 738, 37 Pac. 240.

17 People v. Pearson, 76 Cal. 400, 18 Pac. 424.

17a Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007; Goodale v. Coffee, 24 Or. 346, 33 Pac. 990; Braly v. Seaman, 30 Cal. 610.

18 Sayre-Newton Lumber Co. V. Park, 4 Colo. App. 482, 36 Pac. 445; Evert V. Connecticut Mutual Life Ins. Co., 4 Colo. App. 509, 36 Pac. 616.

P. P. F. Vol. I-42

19 2 Ballinger's Annot. Codes, § 4877; Swanson v. Hoyle, 32 Wash. 169, 72 Pac. 1011.

20 Forbes v. Hyde, 31 Cal. 342; Palmer v. McMaster, 13 Mont. 189, 40 Am. St. Rep. 436, 33 Pac. 132; Ervin v. Milne, 17 Mont. 499, 43 Pac. 706; Odell v. Campbell, 9 Or. 302; Goore v. Goore, 24 Wash. 143, 63 Pac. 1092.

21 Yolo County v. Knight, 70 Cal. 430, 11 Pac. 662.

22 Ervin v. Milne, 17 Mont. 494, 43 Pac. 706.

28 Pike v. Kennedy, 15 Or. 420, 15 Pac. 637.

Where the statute requires that the affidavit or the verified complaint on file shall show a cause of action, the cause of action may be shown by an affidavit which refers to and adopts a complaint on file showing a cause of action.24 And where the affidavit is to be acted upon exclusively by the clerk, it need not specifically set forth the cause of action, and an averment that the cause of action exists is sufficient.25 It must, however, show that a cause of action exists against the defendants.26

29

The affidavit must show whether the residence of the person upon whom such service is sought is known to the affiant, and, if known, the residence must be stated,27 or his last known residence, 28 or last known address.28a And it is not sufficient for this purpose to repeat the language or substance of the statute.2 In such a case the affidavit must state facts which show that due diligence to find the defendant has been used, and it must also appear that the diligence has not been awarded by discovery,30 though the results need not now be expressly stated. Thus an affidavit that the defendant could not, after due diligence, be found in the county where the action was pending, that the affiant had inquired of the defendant's friends who would give him no information, and that the plaintiff did not know where the defendant could be found within the state, is wholly insufficient.32 But if the affidavit states that the defendant resides out of the state, and gives his residence, it is sufficient.33 An affidavit which recites that at the time of the commencement of the action, and ever since, the defendant was, and has been, absent from the state, and residing out of the state, and now resides, "as the affiant is informed and believes at S. in the state of New York," is not subject to collateral attack on the ground that the statements contained therein were on information

24 Ligare v. California etc. R. R. Co., 76 Cal. 610, 18 Pac. 777.

25 Calvert v. Calvert, 15 Colo. 390, 24 Pac. 1043.

26 Beckett v. Cuenin, 15 Colo. 281, 22 Am. St. Rep. 399, 25 Pac 167.

27 Ricketson v. Richardson, 26 Cal. 149; Braly v. Seaman, 30 Cal. 610.

28 Mills v. Smiley, 9 Idaho, 317, 76 Pac. 783; Columbia Screw Co. V. Warner Lock Co., 138 Cal. 445, 71 Pac. 498.

28a San Diego Sav Bank v. Goodsell, 137 Cal. 420, 70 Pac. 299.

29 Ricketson v. Richardson, 26 Cal. 149.

30 Braly v. Seaman, 30 Cal. 610; Forbes v. Hyde, 31 Cal. 342.

31 Chapman v. Moore, 151 Cal. 509, 121 Am. St. Rep. 130, 91 Pac.

324.

32 Swain v. Chase, 12 Cal. 283. 33 Pike v. Kennedy, 15 Or. 420, 15 Pac. 637; De Corvet v. Colan, 7 Wash. 365, 35 Pac. 72, 1072; Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34, 13 Pac. 73; Furnish v. Mullan, 76 Cal. 646, 18 Pac. 854.

and belief only;34 although, as a general rule, such averments should not be made on information and belief.35 Diligence is in all cases a relative term, and what is due diligence must be determined by the circumstances of the particular case.3

36

But where the summons has been returned by the sheriff of the county in which the land in controversy is located, and inquiry of the county officials and others well acquainted in the county fails. to disclose the whereabouts of defendant, such an affidavit may confer jurisdiction if supported by lapse of time and the sound discretion of the court.37

The affidavit must state the steps taken to obtain personal service.38 Under the Colorado practice, the affidavit is to be acted upon exclusively by the clerk of the court, and it is only necessary that it contain sufficient averments to inform the clerk that the defendant is a non-resident, that the plaintiff has a cause of action, and that the defendant is a necessary party thereto. It is not required by the statute that the court judicially ascertain before granting the order that such a cause of action has been stated in the affidavit as will sustain a judicial decree.39 In Washington, the affidavit for publication is not necessary to personal service out of the state, and the summons is the same as the ordinary summons, except it requires defendant to answer in sixty days.40

§ 1075. Amendment of affidavit.-An affidavit for service by publication which states defectively but inferentially the matters required is voidable only, and may be amended." But if the affidavit is insufficient, it is immaterial if personal service is afterwards had upon defendant.42

§ 1076. Order for publication.-To support an order for the service of summons against a non-resident by publication, it is essential, in order to give the court jurisdiction, that a cause of

34 Johnson v. Miner, 144 Cal. 785, 78 Pac. 240.

35 Forbes v. Hyde, 31 Cal. 342. 36 Rue v. Quinn, 137 Cal. 651, 66 Pac. 216, 70 Pac. 732.

37 People v. Wrin, 143 Cal. 11, 76 Pac. 646.

38 Beach v. Beach, 6 Dak. 371, 43 N. W. 701; Palmer v. McMaster, 13 Mont. 184, 40 Am. St. Rep. 434, 33 Pac. 132; Victor Mill etc. Co. v. Justice Court, 18 Nev. 21, 1 Pac. 831.

89 Code Civ. Proc., § 41; Calvert v. Calvert, 15 Colo. 390, 24 Pac. 1043.

40 Jennings v. Rocky Bar Gold Min. Co., 29 Wash. 726, 70 Pac. 136; Hunter v. Wenatchee Land Co., 36 Wash. 541, 79 Pac. 40.

41 Reister v. Land, 14 Okla. 34, 76 Pac. 156. But see Knapp v. Wallace, 50 Or. 348, 126 Am. St. Rep. 742, 92 Pac. 1054.

42 McKibbin v. McKibbin, 139 Cal. 448, 73 Pac. 143.

action be shown either by a properly verified complaint or by affidavit. Accordingly, where a complaint is not verified, an affidavit by the attorney for the plaintiff, showing that all of the facts stated therein concerning the indebtedness sued upon are stated upon information received by him from the plaintiff, shows no cause of action for the order of publication, and the publication based on such affidavits is void.43 The order must state the facts proved by the affidavit upon which it is based,43a and provide for a certain publication, specifying the time in which the defendant must appear." It is not sufficient that it state, generally, that the defendant resides out of the state, or cannot after due diligence be found within the state, or that a cause of action exists against the defendant.45 Jurisdiction, in cases of published summons, is based upon the affidavit, and not on the recitals of fact found in the order; the order is only the conclusion of the court based upon the affidavit.46

An order of the court directing service by publication is absolutely essential to render such service valid. So an order to publish a summons made in advance of the issuance of the motion is a nullity. Accordingly, where after the complaint was filed, and before any summons was issued, an order was obtained from the judge that "summons do issue," and that it be published, and without any further order summons was subsequently issued and published, it was held that the attempt thus to acquire jurisdiction of the defendant was ineffectual.48 The authority of the court to order service by publication is not, however, taken away by reason of the fact that the summons has been previously returned to the clerk's office. The provision for an alias summons does not impair the power of the court to authorize the summons to be withdrawn for further service, or for service by publication.49

Where the statute requires that the order be published in the newspaper "most likely to give notice to the person to be served," the order need not recite the fact that the newspaper designated is the one most likely to give such notice, where it appears from

43 Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445, 71 Pac. 498. 43a Ricketson v. Richardson, 26 Cal. 149.

44 McFarlane v. Cornelius, 43 Or. 513, 73 Pac. 325, 74 Pac. 468.

45 Ricketson V. Richardson, 26 Cal. 149.

46 Goodale v. Coffee, 24 Or. 346, 33 Pac. 990.

47 People v. Pearson, 76 Cal. 400, 18 Pac. 424; People v. Harrison, 107 Cal. 544, 40 Pac. 956.

48 Sharp v. Daugney, 33 Cal. 505. 49 Rue v. Quinn, 137 Cal. 651, 66 Pac. 216, 70 Pac. 732.

the record that the paper is a public newspaper published in the proper county.50.

The fact that the clerk, on failing to enter the original order in the records, failed to sign his name to it does not render the order invalid, where it was in every other respect regular.51

§ 1077. Mailing copy to defendant. The codes generally provide that where the residence of a non-resident or absent defendant is known, the court must direct a copy of the summons and complaint to be "forthwith" deposited in the post-office, directed to the person to be served at his place of residence.52 This is in addition to an order directing the publication.53 Where an order for service of publication directed that a copy of the summons be deposited in the post-office, addressed to the defendant at her last place of residence, it was held sufficient, notwithstanding the omission of the word "forthwith" contained in the statute.5a Section 12 of the California Political Code does not necessarily apply to persons without the state, and service by mailing to defendant's last known address, though the address, as stated in the affidavit, was not the residence of defendant, is sufficient.55 It is not necessary that such order contain findings of the jurisdictional facts, the finding of such facts being presumed from the granting of the order. Where the order for deposit in the postoffice is not made, the court acquires no jurisdiction.57

56

Service of summons upon infants, although under the age of fourteen years, should be made by depositing the summons and certified copy of the complaint in the post-office, directed to the infants the same as to other defendants.58 Failure to so deposit the summons when directed to the minor is not cured by the appearance of the mother in her own behalf.59

The attorney for the plaintiff may deposit the copy of the summons and complaint in the post-office, and his affidavit is

50 Seaver v. Fitzgerald, 23 Cal. 85; Calvert v. Calvert, 15 Colo. 390, 24 Pac. 1043.

51 In re James Estate, 99 Cal. 374, 33 Pac. 1122, 37 Am. St. Rep. 60.

52 Cal. Code Civ. Proc., § 413; Alaska Code, pt. 4, ch. 4, § 42; Or. B. & C. Codes, § 57; Utah Rev. Stats., § 2, Comp. Laws. 1888, p. 241.

53 Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007.

54 Anderson v. Goff, 72 Cal. 65, 13 Pac. 73, 1 Am. St. Rep. 34; Calvert v. Calvert, 15 Colo. 390, 24 Pac. 1043. 55 San Diego Sav. Bank v. Goodsell, 137 Cal. 420, 70 Pac. 299.

56 Goodale v. Coffee, 24 Or. 346, 33 Pac. 990.

57 Park v. Higbee, 6 Utah, 414, 24 Pac. 524.

58 Gray v. Palmer, 9 Cal. 616.
59 Id.