in the county of . state of Nevada. [Or, that the last known place of residence of said defendant, C. D., was at . . ., within this state, but that he removed thence on or about the .. day of ., 19. ., and his residence at this time cannot with due diligence be ascertained. I have diligently made such inquiry of . . . and his former neighbors and acquaintances, and of . his wife, and of his father and brother, who reside at the said city and county of.. and I am informed by them that they are ignorant of defendant's residence, but that he is not, as they believe, within this state.]

...

III. That a summons was duly issued out of this court to the sheriff of the city and county of . . ., with directions to said sheriff to serve the same upon said defendant, and the said sheriff has returned the same to the clerk of this court, with his return thereon indorsed, to the effect that the said defendant could not be found in his county [or state particulars of the return].

IV. That there has not been filed by or on behalf of the defendant in the office of the county recorder of said county of . . . any certificate of residence as provided in section 1163 of the Civil Code of the state of California.

V. I have fully and fairly stated the facts of the case to E. F., of No. . . . street, in the city of San Francisco, my counsel, and I am by him informed, and I verily believe, that I have a good cause of action in this suit against the said defendant, as will fully appear by my verified complaint filed herein, to which reference is hereby made, and the said defendant, C. D., is a necessary and proper party defendant thereto, as I am advised by my said counsel after such statement made, as aforesaid, and as I verily believe.

VI.

Personal service of said summons cannot be made on the said defendant, and I, therefore, demand an order that service of the same may be made by publication.

§ 1083. Order for publication of summons.

[TITLE]

Form No. 359.

A. B.

Upon reading and filing the affidavit of A. B., and it satisfactorily appearing therefrom to me, the judge of the superior court of the state of . . ., in and for the county of. that the defendant C. D. resides out of this state, and cannot, after due diligence, be found therein [or, has departed from the state; or, cannot, after due

diligence, be found within the state; or, conceals himself to avoid the service of summons, as the case may be], and it appearing from the affidavit aforesaid that a cause of action exists in this action in favor of the plaintiff therein, and against the said defendant, and that the said defendant C. D. is a necessary and proper party defendant thereto; and it further appearing that a summons has been duly issued out of said court in this action, and that personal service of the same cannot be made upon the said defendant for the reasons herein before contained, and by the said affidavit made to appear: on motion of E. F., Esq., attorney for the plaintiff, it is ordered that the service of the summons in this action be made upon the defendant by publication thereof in the . . ., a newspaper published at . . ., hereby designated as the newspaper most likely to give notice to said defendant; that such publication be made at least once a week for two months.

And it further in like manner satisfactorily appearing to me that the residence of said defendant is known to be at the city of . . . in the county of . . ., in the state of . . ., it is ordered that a copy of the summons and a copy of the complaint in this action be forthwith deposited in the post-office, postpaid, directed to the said defendant, at his said place of residence. [DATE.]

J. D., Judge of the Superior Court of the county of state of ...

A. B., of said. . . county, being duly sworn, deposes and says as follows:

I. I am a citizen of the United States, and at all the times hereinafter mentioned was over eighteen years of age, and am not a party to the above-entitled action.

II. I am the principal clerk and bookkeeper in the office of the daily. . ., a newspaper printed and published in the city and county of... [or, printer, foreman, or principal clerk].

III. The summons of which the annexed is a printed copy was published in said newspaper at least once each week for . . . months, commencing on the . . . day of..., 19.., and ending on the . . . day of . . 19..

[JURAT.]

...

[SIGNATURE.]

§ 1085. complaint.

Affidavit of service by mail of summons and copy of

Form No. 361.

[TITLE.]
[VENUE.]

A. B., of . . ., being duly sworn, deposes and says as follows: I. I am, and at the several times hereinafter mentioned was, a citizen of the United States, over eighteen years of age, and am not a party to the above-entitled action.

II. That on the . . . day of . day of..., 19. ., the complaint in the said action was filed, and afterwards, to-wit, on the . . . day of 19., an order was made by the court for the publication of the summons in the said action, and also a further order that a copy of said complaint and copy of the said summons should be forthwith deposited in the post-office, and directed to the defendant in said action, at his place of residence, to-wit, at the city of . . ., in the county of . . ., state of . . . ; that afterwards, to-wit, on the . . . day of . . ., 19.., and in pursuance of said order of the court in the premises heretofore made, I deposited in the post-office at the city of..., a copy of the said summons, attached to a copy of the said complaint, directed to C. D., the said defendant, at the city of . . ., in the county of . . ., state of . . ., the place of his residence as aforesaid, and prepaid the postage thereon.

[JURAT.]

[SIGNATURE.]

CHAPTER XLI.

SUMMONS-RETURN AND PROOF OF SERVICE.

§ 1086. Return in general.-An officer's return of the service of a summons must show that the provisions of the statute regulating the service of summons was substantially observed and followed; and if the summons is served by any person empowered to act, the affidavit thereon must show that he is one of the persons described by the statute. The record, showing as to the mode of service, is conclusive, and no presumption can be indulged in that there was some other and different kind of service made from that appearing in the record. If served by the sheriff, he makes his certificate to the service; if by any other person or officer, he makes affidavit to the service. Under the California statute, providing that where the summons is served by any one other than the sheriff proof must be made by the affidavit of the person serving it. Service of a summons by a notary in England cannot be proved by his certificate and seal. Under the Colorado code," requiring the summons to be served by the sheriff of the county where the defendant is found, or by his deputy, and to be returned, with the certificate of the officer, to the office from which it is issued, and section 47, providing that such certificate shall be proof of service, a return, dated at the office of the sheriff of the county of the defendant's residence, stating that the summons was served personally by delivering a copy to the defendant, and signed by the sheriff or his deputy, is not insufficient because it does not show that such person was at the time the duly qualified sheriff of the county.8

The general rule of the common law is that officers who exercise judicial functions cannot act by deputy, but those who exercise

1 People v. De Bernal, 43 Cal. 385; Linott v. Rowland, 119 Cal. 453, 51 Pac. 687.

2 Black v. Clendenin, 3 Mont. 47. 8 Lonkey v. Keyes Silver Min. Co., 21 Nev. 320, 31 Pac. 57, 17 L. R. A. 351.

Cal. Code Civ. Proc., § 411; Alaska Codes, pt. 4, ch. 5, § 52; Ariz. Civ. Code, par. 1327; Idaho Rev. Codes, 4148; Mont. Rev. Codes,

§§ 6524, 6525; Nev. Comp. Laws, §§ 3128, 3129; Or. B. & C. Codes, § 820; Utah Rev. Stats., § 2952; Wash. Bal. Codes, § 4875; Wyo. Rev. Stats., § 3705.

5 Code Civ. Proc., § 415.

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

7 Code Civ. Proc., § 39.

8 Thomas v. Colorado Nat. Bank, 11 Colo. 511, 19 Pac. 501.

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.10 Courts cannot know an under-sheriff, and the act and return on a summons of the deputy sheriff is a nullity, unless done in the name and by the authority of his principal.11

The California statute,12 which requires a summons when served by a person other than the sheriff to be returned with such person's affidavit of service to the office from which it issued, does not require the affidavit when returned to be filed.13

§ 1087. Form and sufficiency of return.-The proof of personal service, if made by an officer, is by his affidavit or certificate setting forth the mode, time, and place of such service; if made by a citizen, then by his affidavit setting forth such facts, and, in addition, the facts constituting his qualifications. Proof of constructive service, or service by publication, is made by the affidavit of the printer, his foreman or principal clerk, setting forth the fact where and how long the publication of summons has been made. and where a deposit in the post-office has been ordered, by an affidavit showing such deposit.14 The affidavit must show affirmatively a compliance with all the requirements of the statute.15 The affidavit required by the Washington statute1 for publication of summons is not necessary to personal service on a defendant out of the state. The Montana statute18 provides that a copy of the complaint must be served with the summons, unless two or more defendants reside in the same county, in which case a copy of the complaint need only be served on one of such defendants. In such a case, where a copy of the complaint is served on one of the defendants, with the summons, a return of service need not show that the defendants all reside in the county.19 If the affidavit states the county in which the service was made, it will be pre

Jobson v. Fennell, 35 Cal. 711.

10 Id.

11 Joyce v. Joyce, 5 Cal. 449; Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089; Rowley v. Howard, 23 Cal. 401.

12 Code Civ. Proc., § 410.

13 Hibernia etc. Soc. v. Clarke, 110 Cal. 27, 42 Pac. 425.

14 Hahn v. Kelley, 34 Cal. 391, 94 Am. Dec. 742.

15 McMillan v. Reynolds, 11 Cal. 378.

16 Ballinger's Codes, § 4877. 17 Hunter v. Wenatchee Land Co., 36 Wash. 541, 79 Pac. 40.

18 Code Civ. Proc., § 635.

19 Mantle v. Casey, 31 Mont. 408, 78 Pac. 591.