the defendant. Beckett v. Cuenin, 15 Colo. 281, 284 (1850), 25 P. 167; 22 Am. St. 399.

34. An affidavit for publication of summons that does not state that a cause of action exists against the defendant and that the defendant is a necessary or proper party to the action, and that he is a non-resident, is insufficient. Frybarger v. McMillen, 15 Colo. 349, 350 (1890), 25 P. 713; Beckett v. Cuenin, 15 Id. 281, 284 (1890), 25 P. 167, 22 Am. St. Rep. 399; Calvert v. Calvert, 15 Id. 390, 396-8 (1890), 24 P. 1046.

35. In considering the affidavit required by this section our Code is said to be more analogous to that of Kansas and Nebraska than to the Code of California, and the decisions of the latter state requiring affidavit to specifically set forth the cause of action, is not followed, and affidavit need only allege a cause of action exists. Calvert v. Calvert, 15 Colo. 390, 396, 398 (1890), 24 P. 1043; Bogle v. Gordon, 39 Kans. 31, 32, 17 P. 857; Fulton v. Levy, 21 Neb. 478, 32 N. W. 307.

36. An affidavit for publication of summons made before the plaintiff's attorney should not be received by the court. Frybarger v. McMillen, 15 Colo. 349, 350 (1890), 25 P. 713.

See secs. 61, 337 and notes.

37. Statute must be strictly followed. Affidavit made by an attorney in the suit and not by the plaintiff or one of the plaintiffs, or by a representative of a corporation legally authorized to act for it, is insufficient. Davis v. Mouat Lumber Co., 2 Colo. App. 381, 387 (1892), 31 P. 187.

38. An affidavit for publication of summons made by the plaintiff's attorney on information and belief is defective and insufficient. Without some showing of right, authority and capacity, an attorney cannot make an affidavit which will be sufficient to uphold an order for such substituted service. Sylph M. & M. Co. v. Williams, 4 Colo. App. 345, 346 (1894), 36 P. 80. 39. To obtain service by publication of summons there must be a strict observance of the statutory requirements. The affidavit for the order of publication must be by a party. An attorney of the party is not competent to make it. Everett v. Ins. Co.. 4 Colo. App. 509, 512 (1894), 36 P. 616.

40. The affidavit for an order of publication of summons must be made by the plaintiffs or one of them. Sayre-Newton Lumber Co. v. Park, 4 Colo. App. 482, 485 (1894), 36 P. 445. Order Mailing Copy.

41. This section does not require that the order of publication be in the alternative directing service by publication or by personal service out of the state. Calvert v. Calvert, 15 Colo. 390, 395 (1890), 24 P. 1045.

42. The order for publication need not necessarily recite that a copy of the summons be forthwith deposited in the postoffice. Id.

43. An order that summons be published in a designated paper, described as "a weekly paper published regularly in this state," and that a copy of said summons be deposited in the postoffice at West Las Animas addressed to defendant, will be presumed to have been made because said paper would be the one most likely to give notice to the defendant. Id. 393-4. 44. The clerk is to mail this notice only where residence is known. Brown v. Tucker, 7 Colo. 30, 33 (1883), 1 P. 221.

45. The postage must be prepaid upon a summons mailed to defendant. Morton v. Morton, 16 Colo. 358, 360 (1891), 27 P. 719.

Time.

46. Where statute requires four weeks' notice, a publication for twenty days is insufficient. Crary v. Barber, 1 Colo. 172,

174 (1869). It seems that a return made before ten days would not support a notice of publication. Palmer v. Cowdrey, 2 Colo. 1, 6 (1873); Vance's Heirs v. Maroney, 4 Colo. 47, 49 (1877); Clayton v. Clayton, 4 Colo. 410, 415-16 (1878); Israel v. Arthur, 7 Colo. 7 (1883), 1 P. 438; Cheely v. Clayton, 110 U. S. 707 (1883).

47. It was required by L. '72, p. 152, that notice to lien claimants should be published "once a week for three consecutive weeks;" held that a notice published three times in three successive weeks was good, although less than 21 days intervened between first publication and the date fixed in the notice for the appearance of other claimants. Decker v. Myles, 4 Colo. 558, 560, etc., (1879).

48. Under former chancery practice the rule as to computing time for publication of notice was to exclude the day of publication and to include the first day of the court. Stebbins v. Anthony, 5 Colo. 348, 354 (1880).

49. After the service is complete defendant had still 40 days to answer. Conley v. Morris, 6 Colo. 213 (1882); Skiles et al. v. Baker et al., 6 Colo. 295 (1882); Brown et al. v. Tucker, 7 Colo. 30, 33 (1883), 1 P. 221; O'Rear v. Lazarus, 8 Colo. 608, 609 (1885), 9 P. 621; Calvert v. Calvert, 15 Colo. 390, 395-6 (1890), 24 P. 1043.

50. But a premature entry makes the judgment voidable, and not void. It is not subject to collateral attack. Brown v. Tucker, 7 Colo. 30, 34 (1883), 1 P. 221.

51. Notes 2 and 3, supra, show when service other than personal, or personal service without the state, is complete. Great Western v. Woodmas, etc., Co., 12 Colo. 46, 54 (1888), 20 P. 771.

52. The ten days begin to run from date of the last publication, though it be less than 28 days or four full weeks from first publication. Calvert v. Calvert, 15 Colo. 390, 395-6 (1890), 24 P. 1045.

53. Where the service is by publication, fifty days must elapse after the last publication required by law before the defendant can properly be considered in default. Morton v. Morton, 16 Colo. 358, 360 (1891), 27 P. 719.

54. The service of summons is not complete when made by publication until ten days after the last publication. When complete the court has jurisdiction and defendant has thirty days to appear and plead. Seeley v. Taylor, 17 Colo. 70, 72-3 (1891), 28 P. 462.

55. When the service of summons is by publication, a judgment entered forty-one days after the last publication is premature. Sylph M. & M. Co. v. Williams, 4 Colo. App. 345, 346 (1894), 36 P. 80.

LEADING CASES AND REFERENCES.

56. Substituted service by publication is void as not "due process of law," as against a non-resident not appearing, unless such non-resident has property within the state, brought under the jurisdiction of the court by attachment or other process. Pennoyer v. Neff, 95 U. S. 714 (1877); Harkness v. Hyde, 98 U. S. 476, 478 (1878); Smith v. Woolfolk, 115 U. S. 149; Freeman v. Alderson, 119 U. S. 188.

57. Attachment of property of non-resident gives no jurisdiction over person of such non-resident. Graham v. Spencer, 14 Fed. 603, 606 (1882); Harkness v. Hyde, 98 U. S. 476, 478 (1878); Pennoyer v. Neff, 95 U. S. 714 (1877).

58. Service of summons by publication must comply strictly with the statute. Beckett v. Cuenin (Colo.) 22 Am. Dec. 399 n. 402; McGahen v. Carr (Ia.) 71 Am. Dec. 421 n. 427.

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59. Judgment in attachment on service by publication against non-residents, binds property attached within the jurisdiction of the court. Anderson v. Goff (Cal.) 1 Am. St. 34 n. 41.

60. Sufficiency of publication of summons and affidavit upon which same is based. Williams v. Westcott (Ia.) 14 Am. St. 287 n. 296.

61. Service by publication upon a non-resident is foundation for a personal judgment to the extent of authorizing a sale of property attached within the jurisdiction of the court. Harris v. Dougherty (Tex.) 15 Am. St. 812 n. 818.

62. Affidavits of service by publication may be amended after judgment rendered. Burr v. Seymour (Minn.) 19 Am. St. 245 n. 247.

63. Proceedings in rem may be supported by service by publication. Shepherd v. Ware (Minn.) 24 Am. St. 212 n. 217. 64. A decree against a non-resident based upon service by publication, which determines conflicting claims to realty within the state is valid. McLaughlin v. McCrory (Ark.) 29 Am. St. 56 n. 59.

65. Judgments in personam against non-residents cannot be rendered where service by publication only was had. Hardy v. Beaty (Tex.) 31 Am. St. 80 n. 88.

66. What affidavit for publication of summons must show. Palmer v. McMaster (Mon.) 40 Am. St. 434 n. 437.

67. Service upon defendant must be personal in order to give federal courts jurisdiction in attachment cases. Harland v. United L. T. Co. (U. S. C. Ct., Conn.) 6 L. R. A. 252 n.

68. Validity of personal judgments rendered upon constructive service of process against residents and non-residents considered. Moyer v. Bucks (Ind.) 16 L. R. A. 231, extended note.

69. Judgment rendered on defective service by publication may be set aside at any time on motion or by equity proceedings. Dunlap v. Steere (Cal.) 16 L. R. A. 361 n.

70. After period of publication, the defendant has forty days to answer. Grewell v. Henderson, 5 Cal. 466 (1855).

71. Deer. § 412, 413; Hars. § 412, 413; 3 Est. Pl. § 3907-12, 3934-43; 1 Yap. C. Pr. 109, etc., 322.

42. Several defendants-part not served-procedure. Where the action is against two or more 2 defendants, and the summons is served on one or more, 3 but not on all of them, the plaintiff may proceed as fol4 lows: First, if the action be against defendants jointly 5 indebted upon a contract, he may proceed against the 6 defendants served, unless the court otherwise directs; 7 (and if he recover judgment, it may be entered against 8 all the defendants thus jointly indebted so far only as 9 that it may be enforced against the joint property of all, 10 and the separate property of the defendants served). 11 Second, if the action be against defendants severally lia12 ble, he may proceed against the defendants served in the 13 same manner as if they were the only defendants.

1. This section is same as Code 1877, § 43, except line 6, "direct" for "directs;" lines 7-10 in parenthesis are omitted.

2. As to judgment for or against one or more of several plaintiffs or defendants See secs. 222, 223.

3. Joint and several liability, sec. 13; Mills' Ann. Stat. § 2528.

4. Associates under common name, sec. 14.

5. Procedings against joint debtors, sec. 235.

6. Judgment against joint debtors in Justices' act. Mills' Ann. Stat. § 2643.

In General.

7. It is error to enter judgment against parties not served with process. Dorsett v. Crew, 1 Colo. 18, 21 (1864).

8. The record must show affirmatively and clearly and not leave to inference the defendants who are served. Gargan v. School District No. 15, 4 Colo. 53, 57 (1878); Langley v. Grill, 1 Colo. 71, 72 (1867). See sec. 44 and notes.

9. A judgment against two when one only is served with process, is erroneous. Langley v. Grill, 1 Colo. 71, 73 (1867).

10. Judgment invalid under former practice when entered against one defendant without disposing of the case as to other defendants served. Bissell v. Cushman, 5 Colo. 76-7 (1879).

11. In holding that the word "obligation" as employed in sec. 13 does not embrace or apply to oral contracts this section is referred to. Exchange Bank v. Ford, 7 Colo. 314, 318 (1884), 3 P. 449.

12. In suit against partnership to collect a firm debt, it is error to render judgment against one of the partners alone, as if for an individual debt, even when he is the only partner served with process. Craig v. Smith, 10 Colo. 220, 221 (1887), 15 P. 337; Dessauer v. Koppin, 3 Colo. App. 115 (1893), 32 P. 182. 13. Can a judgment rendered against several parties, part of whom were not subject to the jurisdiction of the court, still be maintained against those over whom jurisdiction was regularly obtained, quere? Wilson v. Hawthorne, 14 Colo. 530, 534 (1890), 24 P. 550. See St. John v. Holmes, 20 Wendell 609 S. C. 32 Am. Dec. 603, note 604, etc.

14. An action cannot be maintained against one stockholder in a corporation as sole defendant and recover from him the entire amount of a corporate debt. Buenz v. Cook, 15 Colo. 38, 42 (1890), 24 P. 680.

15. When proceeding under the second subdivision of this section, it is proper to enter a separate judgment against the defendants served. Lux v. McLeod, 19 Colo. 465, 469 (1894), 36 P. 246.

16. When all the members of a firm have not been served or have not appeared, judgment can be entered against the partners only, to be enforced against partnership property and that of the partner served. Dessauer v. Koppin, 3 Colo. App. 115. 116 (1893), 32 P. 182; Breene v. Booth, 3 Colo. App. 470, 475 (1893), 33 P. 1007.

17. This section cited with sec. 13, to the effect that a note is joint and several. Tabor v. Miles, 5 Colo. App.-(1894), 38 P. 64.

18. Effect of judgment against joint debtors, service being had only on one. Smith v. Ayrault (Mich.) 1 L. R. A. 311, extended note.

19. Judgment against partner or joint debtor not served is void. Common law rule and statutory modifications. Wood 7. Watkinson (Conn.) 44 Am. Dec. 562, extended note 570.

20. Judgment against one joint debtor merges right of action against another for the same debt. Bell v. Layman, Speed's Exr's v. Hann (Ky.) 15 Am. Dec. 78 n. 82.

21. Deer. § 414; Hars. § 414; 1 Yap. C. Pr. 113, 326.

43. Proof of service.

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Proof of the service of the summons shall 2 be as follows: First, if served by the sheriff or his dep3 uty, the certificate of such sheriff or deputy. Second, 4 if by any other person, his affidavit thereof. Third, in 5 case of publication the affidavit of the editor, publisher, 6 or his foreman, or his principal clerk, showing the same, 7 and an affidavit of a deposit of a copy of the summons 8 in the postoffice, if the same shall have been deposited. 9 Fourth, The written admission of defendant proved 10 by the certificate of an officer authorized to serve sum11 mons, or the affidavit of some credible witness. In 12 case of service otherwise than by publication, the certi13 ficate or affidavit shall state the time, place and manner 14 of the service.

1. This section is same as Code 1877, § 44, down to word "defendant," line 9, where it ends; and Code 1877, § 45, is same as last sentence.

2. "Sheriff" includes any one authorized to perform his duties in any case. Sec. 442.

3. As to amendments in general, sec. 75.

4.

As to amendments in attachment, sec. 117.

5. As to amendments in replevin, sec. 85.

6. As to amendments in garnishment proceedings, sec. 140.

As to appeal bonds, sec. 388; writs of error, sec. 406.

7. Who to serve summons, sec. 37. Upon whom to be served, sec. 38.

8. Publishers' certificate evidence and part of record. Mills' Ann. St. § 1753-4.

Return of service.

COLORADO CASES.

9. A return in these words is ambiguous and bad: "I have duly served the within by reading the same to the within-named John C. Bruce and John H. Langley not found in my county, as I am therein commanded." Langley v. Grill, 1 Colo. 70, 71-2 (1867).

10. An officer in his return should state clearly and explicitly the time and manner of executing process, and a return that leaves the mind in doubt should not be received. Id.

11. This return sufficiently shows date of service: "Feb. 19th, 1874. I have duly executed the within by reading the same to the within-named J. U. M., as I am therein commanded." Marlow v. Kuhlenbeck, 2 Colo. 602-3 (1875).

12. Sufficiency of service is always a jurisdictional question. Gargan v. School D. No. 15, 4 Colo. 53, 57 (1878).

13. Record should distinctly show service of process on defendants or their voluntary appearance; it ought not to be left to inference or conjecture. Hence, where rule is for "defendants" to plead and some are served and some not, a plea filed in name of defendants will apply only to those served. Id. See sec. 44 and notes.

14. Where a failure of service of summons is affirmatively shown by the record the judgment is void beyond question. San Juan & St. L. M. & S. Co. v. Finch, 6 Colo. 214, 219 (1882).

15. The certificate of service made in Gunnison county of a