60 63 sufficient proof thereof; and the deposit may properly be made in the post-office where the attorney resides and has his office, although the order for publication was made at a different place.o1 Some of the codes provide that when publication is ordered, personal service of the copy of the summons and complaint out of the state is equivalent to publication and deposit in the postoffice. In such a case, however, personal service out of the state can be made if at all, only where a publication of the summons has been ordered; and prior service out of the state is of na avail.62 Where the summons and complaint were mailed to the defendant and were taken from the post-office by her husband and delivered to her in a sealed envelope, this was held not to be personal service within the meaning of a statute permitting personal service without the state as a substitute for publication and deposit in the post-office. A Nevada statute provides that in a suit against a corporation organized under the laws of another state, a copy of the summons and complaint shall be mailed to the president and trustees of such corporation at their place of business in the latter state, in addition to the personal service required by the same statute; and it is held that, in the absence of the personal service so required, the mailing of a copy of the summons and complaint adds no force to the officer's return on the summons.65 Where an order of publication required the mailing of the copy of the summons and complaint "forthwith," a finding by the trial court that a delay of ten days was not unreasonable will not be disturbed.66 Where plaintiff's true name, "McKnight," appeared in the copy mailed to defendant, but in the summons as published appeared as "Knight," it is not fatal error.67 § 1078. Sufficiency of publication.-In order to acquire jurisdiction by publication, all the statutory requirements must be substantially complied with. The summons must be published as 68 60 Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34, 13 Pac. 73. 61 Mudge v. Steinhart, 78 Cal. 34, 12 Am. St. Rep. 17, 20 Pac. 147. 62 McBlain v. McBlain, 77 Cal. 507, 20 Pac. 61. 63 Rhode Island Hospital etc. Co. v. Keeney, 1 N. Dak. 411, 48 Pac. 341. 64 Gen. Stats., § 305. 65 Lonkey v. Keyes Min. Co., 21 Nev. 312, 31 Pac. 57, 17 L. R. A. 351. 66 Star v. Mahan, 4 Dak. 213, 30 N. W. 169. 67 McKnight v. Grant, 13 Idaho, 629, 121 Am. St. Rep. 287, 92 Pac. 989. 68 Mills v. Smiley, 9 Idaho, 317, 325, 76 Pac. 785. 69 it was when the order of publication was made. Accordingly, when an order was made for service of summons by publication and a summons was issued, and a supplemental complaint was afterwards filed and a summons issued thereon, it was held that the original action became merged in the action as supplemented, and the court did not acquire jurisdiction of the persons of absent defendants by publication of the original summons, but it was essential to serve by publication the summons issued on the supplemental complaint. But discrepancies of a purely literal character between the summons as issued and as published will be disregarded where in sense and meaning they are identical." It cannot be said on appeal that the court erred in construing its order for publication of summons in the "San Diego Union" as referring to the "San Diego Union and Daily Bee," in which it was published.72 70 Where the statute provides that a publication of summons against a defendant residing out of the state must be made at least once a week for a period extending over at least two full calendar months, it is not necessary that the two full calendar months should intervene between the first and last publication; but it is necessary that the summons be published once each week for those two months, and that from the day of the first publication two calendar months should intervene before the service of the summons is complete. After the completion of such service, thirty days must elapse before a judgment by default can be taken against the defendant.73 Where the requirement is for a publication of three full calendar months, a publication of summons weekly commencing on the tenth day of January and ending on the ninth day of April, is a publication of three full calendar months, and the first day of the forty, within which the defendant is required to answer, is the tenth day of April. If the last day of the publication is in the same week in which the three months expire, the publication is sufficient, although this day is less than three months from the first day of publication. Under a statute requiring publication of summons to be made not less than once a week for six consecutive weeks, its publications are sufficient. 69 McMinn v. Whelan, 27 Cal. 309. 70 Forbes v. Hyde, 31 Cal. 342. 71 Sharp v. Daugney, 33 Cal. 505. 72 People v. McFadden, 144 Cal. xvii, 77 Pac. 999. 73 Foster v. Vehmeyer, 133 Cal. 459, 65 Pac. 974. 74 Savings etc. Soc. v. Thompson, 32 Cal. 347. where it is made once in each of six consecutive weeks.75 A publication for seventy days is a publication for ten weeks,75a and a publication for thirty-nine days has been held to be a publication for six weeks.76 The publication of summons under a proper order directing such publications, made in a weekly newspaper for five consecutive weeks, the first being on July 18th and the last on August 5th, was a publication each week for at least one month, as required by statute." The requirement in an order for publication of summons, that it be published for two months, must yield to section 3549 of the Political Code, making four weeks' publication sufficient, so that it is enough that it was published four weeks.78 79 § 1079. Time to appear.-The California Code of Civil Procedure provides, in relation to service on non-residents by publication, that "the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication." 80 It is held that the publication only affects the service. of the summons, and the defendant is entitled to thirty days after the period of publication to file his answer.81 In Colorado, fifty days must elapse after the last publication required by law before the defendant can properly be considered in default.82 Publication of the summons, beyond the time required by the order of the court does not extend the time in which the defendant is required. to answer.83 The Political Code of California 84 makes provision for the publication of summons, in certain cases, for four weeks only. As to those cases, section 413 of the Code of Civil Procedure, prescribing a different period, is inapplicable.85 75 State v. Superior Court, 6 Wash. 352, 33 Pac. 827. 75a People v. Gray, 10 Abb. Pr. 468. 76 Olcott v. Robinson, 21 N. Y. 150, 78 Am. Dec. 126. 77 Forsman v. Bright, 8 Idaho 467, 69 Pac. 473. 78 People v. McFadden, 144 Cal. xvii, 77 Pac. 999. 79 Code Civ. Proc., § 413. so See, also, Alaska Codes, pt. 4, ch. 4, §§ 52, 638; Ariz. Civ. Code, pars. 1329, 1334; Idaho Rev. Codes, §§ 4145, 4146; Mont. Rev. Codes, §§ 6520-6523; Nev. Comp. Laws, §§ 3128, 3129; Or. 81 Grewell v. Henderson, 5 Cal. 465; Cal. Code Civ. Proc., § 407. 82 O'Rear v. Lazarus, 8 Colo. 608, 9 Pac. 621. 83 Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34, 13 Pac. 73. 84 Cal. Pol. Code, § 3549. 85 People v. Norris, 144 Cal. 422, 77 Pac. 998. § 1080. Proof of publication-By whom made, and what to contain. Where the affidavit was made by a publisher and proprietor, and not by the printer, foreman, or chief clerk, it was held sufficient, as being within the spirit of the statute.86 When service is had by the publication, proof thereof can only be made by affidavit of the printer, his foreman, or clerk; and the affidavit should state that the person taking the same holds one of these positions.87 And there being but one clerk in the office of the newspaper, and the affidavit describing him as principal clerk, the affidavit was held sufficient.ss A provision that such affidavit shall be made within six months after the last publication is merely directory, and failure to make the affidavit within that time does not deprive the court of jurisdiction to enter judgment.89 If the affidavit does not show facts sufficient to give jurisdiction, but the judgment in the recitals supplies those facts, or recites that service had been had upon the defendant, the judgment will control. It will be presumed that other evidence than that contained in the judgment-roll was made. The recital imports absolute verity. An affidavit commencing, "A. B., principal clerk, etc., being sworn, deposes," etc., was held insufficient." He should swear that he is principal clerk in direct and positive terms. § 1081. Service by publication, when conclusive. - If the code intended a judgment rendered against a defendant served by publication to be final under all circumstances, the constitutionality of such service might admit of very grave doubt. But the legislature did not so intend. The affidavit is only prima facie evidence of the facts, and, if untrue, the defendant can at any time have the judgment set aside.92 If the defendant in fact conceals himself to avoid the service of process, he will not be heard to complain that he was not personally served. If jurisdiction of the person of a defendant was to be acquired by publication of the summons in lieu of personal service, the statutory mode must be strictly pursued; and if it appear that the 91 Steinbach V. Leese, 27 Cal. 86 Sharp v. Daugney, 33 Cal. 505. 513, 73 Pac. 325, 74 Pac. 468. 90 Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742. 295. 93 92 Ware v. Robinson, 9 Cal. 111. 93 Id. See, also, Swain v. Chase, 12 Cal. 285; Ricketson v. Richardson, 26 Cal. 154; Braly v. Seaman, 30 Cal. 617. 94 95 court never had jurisdiction of the person of the defendant by reason of non-compliance with the provisions of the statute, the judgment entered in the case against such defendant will be pronounced a nullity, whether it come directly or collaterally in question. True, the irregularity of a summons or its service which deprives a court of jurisdiction must be so defective that it will authorize a collateral impeachment of the judgment rendered thereon, and amending the return of service may not aid the jurisdiction.98 But a judgment rendered against a nonresident of the state who has not been personally served within the state, nor submitted himself to the jurisdiction of the court, can only be enforced within the state in which the judgment is rendered, and no personal liability will result therefrom which will be recognized beyond the state in which the action originated."7 FORMS FOR PUBLICATION OF SUMMONS. § 1082. Affidavit for publication of summons. [TITLE.] Form No. 358. A. B., of . . being duly sworn, deposes and says as follows: I. I am the plaintiff in the above-entitled action. The complaint in said action was duly filed with the clerk of this court on the . . . day of . of... 19.., and summons thereupon issued; and the said action is brought for the purpose of [state the purpose of the action]. II. The defendant, C. D., last resided at the city and county of but he has departed from this state, and now resides at 94 McMinn v. Whelan, 27 Cal. 312. See, also, Forbes v. Hyde, 31 Cal. 347-355; McCauley v. Fulton, 44 Cal. 359; Martin v. Parsons, 50 Cal. 502. 95 Clause v. Columbia Sav. & Loan Assoc., 16 Wyo. 450, 95 Pac. 54. 96 Knapp v. Wallace, 50 Or. 348, 126 Am. St. Rep. 742, 92 Pac. 1054. But see McKnight v. Grant, 13 Idaho, 629, 92 Pac. 989. 97 See Wilson v. Graham, 4 Wash. C. C. 53, Fed. Cas. No. 17804; Folger v. Columbian Ins. Co., 99 Mass. 267, 96 Am. Dec. 747; Holmes v. Holmes, 4 Lans. 388; Weil v. Lowenthal, 10 Iowa, 578; Harris v. Hardeman, 14 How. 340, 14 L. Ed. 444; Reber v. Wright, 68 Pa. St. 471; Freeman on Judgments, § 564; Pennoyer v. Neff, 95 U. S. 728, 24 L. Ed. 570; Hart v. Sansom, 110 U. S. 151, 28 L. Ed. 101, 3 Sup. Ct. 586; Belcher v. Chambers, 53 Cal. 635; Smith v. Montoya, 3 N. Mex. 39, 1 Pac. 175; McKinney v. Collins, 88 N. Y. 216. |