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431. When attested by seal. Every summons addressed to the sheriff or other officer of any county, other than that from which it issued, shall be attested by the seal of the court; but when it shall be addressed to the sheriff or other officer of the county in which it. issued, it shall not be attested by the seal of the court.

Code, s. 203; 1876-7, c. 85, s. 4.

432. Issued to several counties. The plaintiff may issue a summons, directed to the sheriff of any county where a defendant is most likely to be found, noting on each summons that it is issued in the same action; and when the said summons is returned, it shall be docketed as if only one had issued; and if any defendant shall not be served with such process, the same proceeding shall be had as in other cases of similar process not executed.

Code, s. 204; R. C., c. 31, s. 44; 1789, c. 314, ss. 1, 2; 1831, c. 14, s. 2.

433. When officer shall execute and return. The officer to whom the summons is addressed shall note on it the day of its delivery to him, and shall execute it at least ten days before the beginning of the term to which it shall be returnable, and shall return it by the first day of the term.

Code, s. 200; 1876-7, c. 85.

434. When issued within ten days of term. If any summons shall be issued within less than ten days of the beginning of the next term of the superior court for the county in which it is issued, it shall be made returnable to the second term of said court next after the date of its issuing, and shall be executed and returned by the proper officer accordingly.

Code, s. 201; 1876-7, c. 85, s. 2.

435. Issued more than, served within, ten days of term. When the summons shall be issued more than ten days before the next succeeding term of the superior court of the county to which it is returnable, and shall be executed by the proper officer within less than ten days of said term, it shall be returned as if executed in proper time, and the case placed on the summons docket and continued to the next succeeding term, at which term it shall be treated in all respects as if said next succeeding term had been the return term thereof. But the parties to the action may, by agreement, make up the pleadings at the term to which the summons is returnable. Nothing herein contained shall be construed to release or discharge the sheriff or other officer from any liability he may incur by failing to execute the summons in due time.

Code, s. 202; 1876-7, c. 85, s. 3.

436. When summons returned to second term. Whenever it shall be necessary to serve summons, warrant of attachment, or other process by publication, and it shall appear that in order to make publication for the number of weeks required by law sufficient time will not elapse between the order of publication and the term of court next succeeding the order, then, in all such cases, it shall not be necessary to make the summons, warrant of attachment, or other process returnable to the term of court next succeeding, but it shall be lawful for the judge or clerk to direct that the summons, warrant of attachment, or other process shall be returnable to such other term of court, thereafter to be held, as will allow the summons, warrant of attachment, or other process to be published for the number of weeks required by law so that the publication may be completed before the term of court to which such summons, warrant of attachment, or other process shall be returnable.

1903, c. 169.

437. Alias and pluries. When the defendant in a civil action or special proceeding is not served with summons within the time within which the summons is returnable, the plaintiff may sue out an alias or pluries summons, returnable in the same manner as original pro

cess.

Code, s. 205; R. C., c. 31, s. 52; 1777, c. 115, ss. 23, 71.

438. Discontinuance. A failure to keep up the chain of summonses issued against a party, but not served, by means of an alias pluries summons, is a discontinuance as to such party; and if a summons is served after a break in the chain, it is a new action as to such party, begun when such summons was issued.

See Koonce v. Pelletier, 115 N. C. R., 233.

439. Served by reading. The summons shall be served in all cases, except as hereinafter provided, by the sheriff or other officer reading the same to the party or parties named as defendant, and such reading shall be a legal and sufficient service.

Code, s. 214; 1876-7, c. 241.

Note. For statute forbidding service on Sunday, see s. 2837.

440. Served by copy; corporations; infants; persons non compos. The summons shall be served by delivering a copy thereof in the following cases:

1. If the action be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof: Provided, that any person receiving or collecting moneys within this state for, or on behalf of, any corporation of this or any other state or government, shall be deemed

a local agent for the purpose of this section; but such service can be made in respect to a foreign corporation only when it has property within this state, or the cause of action arose therein, or when the plaintiff resides in the state, or when such service can be made within the state, personally upon the president, treasurer or secretary thereof.

Note. For service on foreign corporations by service on local process agent, see Corporations, s. 1243, and Insurance.

For service on corporation for forfeiture of charter, see Corporations, s. 1199.

2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there be none within the state, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.

3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee or guardian has been appointed, to such committee and to the defendant personally: Provided, that if the superintendent of an insane asylum, or the acting superintendent of such asylum, shall inform the sheriff or other officer who is charged with the duty of serving a summons or other judicial process, or notice, on any insane person confined in such asylum, that the summons, or process, or notice, can not be served without danger of injury to such insane person, it shall be sufficient for such officer to return said summons, process, or notice, without actual service on the insane person, but with an endorsement that it was not personally served because of such information; and when an insane person shall be confined in a common jail it shall be sufficient for an officer charged with service of a notice, summons, or other judicial process, to return the same with the endorsement that it was not served because of similar information as to the danger of service on such insane person given by the physician of the county in which said jail is situated.

Code, s. 217; 1889, c. 89; C. C. P., s. 82; 1874-5, c. 168.

441. Irregular service on infants, etc., validated. In any and all civil actions and special proceedings pending on the fourteenth day of March, one thousand eight hundred and seventy-nine, or theretofore determined, in any of the courts, wherein any or all of the defendants were infants, idiots, lunatics or persons non compos mentis, on whom there was no personal service of the summons, the proceedings, actions, decrees and judgments taken, had and made by such courts in such civil actions and special proceedings shall be valid, effectual and binding against and upon such infants, idiots,

lunatics and persons non compos mentis, and their rights and estates in like manner, as if they had been personally served with a summons therein: Provided, that this section shall not have the effect, nor be construed, to prevent any of the proceedings, actions, judg ments or decrees hereby rendered regular and confirmed, from being impeached and set aside for fraud.

Code, s. 387; 1879, c. 257; 1880, c. 23.

442. Served by publication. Where the person on whom the service of the summons is to be made can not, after due diligence, be found within the state, and that fact appears by affidavit to the satisfaction of the court, or to a judge thereof, and it in like manner appears that a cause of action exists against the defendant in respect to whom service is to be made, or that he is a proper party to an action relating to real property in this state, such court or judge may grant an order that the service be made by publication of a notice in either of the following cases:

1. Where the defendant is a foreign corporation, and has property within the state, or the cause of action arose therein.

2. Where the defendant, being a resident of this state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein.

3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action. 4. Where the subject of the action is real or personal property in this state, and the defendant has, or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any lien or interest therein. 5. Where the action is for divorce, and in all cases where publication is made, the complaint must be filed before the expiration of the time of publication ordered.

6. Where the stockholders of any corporation are deemed to be necessary parties to an action and their names or residences are unknown; or where the names or residences of parties interested in real estate the subject of an action are unknown, if the name of at least one of the parties to the action and interested in the subject matter thereof shall be known, and he be a resident of the state, the court having jurisdiction may, upon affidavit that after due diligence the names or residences of such parties can not be ascertained, authorize service by publication.

7. Where in actions for the foreclosure of mortgages on real estate, if any party having any interest in, or lien upon, such mortgaged premises, is unknown to the plaintiff, and the residence of such party can not, with reasonable diligence, be ascertained by him, and such fact shall be made to appear by affidavit.

8. Where no officer or agent of a domestic corporation upon whom service can be made can, after due diligence, be found within the state, and such facts be made to appear by affidavit. This subsection shall also apply to all summonses, orders to show cause, orders and notices issued by any board of aldermen, board of town or county commissioners or by individuals.

Code, ss. 218, 221; 1885, c. 380; 1889, cc. 108, 263; 1895, c. 334.

443. Manner of publication. The order must direct the publication in any one or two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for four weeks, of a notice, giving the title of the action, the purpose of the same, and requiring the defendant to appear and answer, or demur to the complaint at a time and place therein mentioned; and no publication of the summons, nor mailing of the summons and complaint, shall be deemed necessary. The cost of publishing in a newspaper shall not exceed one dollar and fifty cents an inch of solid type, and shall in no case exceed six dollars for the notice.

Code, s. 219; 1903, c. 134; C. C. P., c. 84; 1876-7, c. 241, s. 3.

444. When service complete. In the cases in which service by publication is allowed, the summons shall be deemed served at the expiration of the time prescribed by the order of publication, and the party shall then be in court.

Code, s. 227; C. C. P., s. 88.

445. Jurisdiction acquired from service. From the time of service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all subsequent proceedings.

Code, s. 229; C. C. P., s. 90.

446. Proof of service. Proof of the service of the summons or notice must be

1. By the certificate of the sheriff or other proper officer.

2. In case of publication, the affidavit of the printer, or of his foreman or principal clerk, showing the same.

3. The written admission of the defendant.

Code, s. 228; C. C. P., s. 89.

447. Voluntary appearance by defendant. A voluntary appearance of a defendant is equivalent to personal service of the summons. upon him.

Code, s. 229; C. C. P., s. 90.

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