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a departure in this respect is to be avoided as dangerous to the effect of the publication. 15
Should an affidavit be refused, the deposition of the publisher may be taken in lieu thereof, under New York statute. 16
30. — certificate. ]— The same principles apply to statutes in existence in some of the States authorizing a court to act upon the certificate of the printer, publisher, etc., in lieu of an affidavit."
Such a certificate, however, if made by a firm, may be signed in the firm name without giving the individual or christian names. 18
31. Contents of affidavit or certificate."']— The proof must be direct to the fact of publication20 in the identical paper designated, and at times which show that the requirements of the statute or order have been satisfied.
“Editor” is included within the meaning of the word " printer ” in statute which does not also name “ publisher.” Pennoyer v. Neff, 95 U. S. 714.
Bunce v. Reed, 16 Barb. 347, where it was held that the publisher of the newspaper may make the affidavit of publication required by L. 1844, to be made by the "printer, or his foreman, or principal clerk."
Followed in Sharp v. Daugney, 33 Cal. 505.
In Gray v. Palmer, 9 Cal. 616-637, an affidavit of publication was made by a “clerk in the office of the Placer Times and Transcript,” the statute requiring one by the principal clerk; held, that as it was clear from the affidavit that there was but one clerk in the office, his affidavit was sufficient; “ for he could not appropriately describe himself as principal clerk."
15 In Lawrence v. State, 30 Ark. 719, it was held that an affidavit by a secretary, instead of the editor or publisher of the paper, was insufficient to sustain service of a “ warning order” that seems to have been in the nature of an original process in a special proceeding.
16 See Eberle v. Krebs, 50 App. Div. 450, 64 N. Y. Supp. 246.
17 Haywood v. Collins, 60 11. 328; Haywood v. McCrory, 33 id., 459 (requiring the certificate to show that the maker was such a person).
18 Reid v. Morton, 119 Ill. 118, 6 N. E. Rep. 414. 19 Where, after entry of judgment, it was challenged for insufficiency of the affidavit, the court considered that it could examine copies of the newspapers and also receive further evidence from the publisher. "Robinson v. Hall
, 33 Kan. 139, 5 Pac. Rep. 763. The papers themselves containing the notice are competent evidence. "Colton v. Rupert, 60 Mich. 318, 27 N. W. Rep. 520.
20 A certificate by an officer whose certificate of publication was by statute made evidence, saying “ the notice was copied from " the paper designated, held not sufficient in Blake v. Dennett, 49 Me. 102.
21 Brisbane v. Peabody, 3 How. Pr. 109.
In Bailey v. Myrick, 50 Me. 171, 181, it was said that the omission of the word “public ” before“ fatal, although the statute requirement was publication in a " public news:
newspaper,” in an officer's return of a sale, was not paper.”
In Soule r'. Chase, 1 Abb. Pr. (N. S.) 48, it was held that proof that. notice to creditors to show cause in insolvency proceedings was published in the N. Y. Day Book is sufficient to show compliance with an order of court
The better opinion is that an affidavit in the words of the statute or order is not sufficient if the object of the affidavit is to present to the court and put upon record proof that acts have been done which satisfy the requirements. To do this, the affidavit, certificate, or return should at least indicate the weeks in which the notice was published, and the first day of publication.23
It is not enough to state publication for the requisite number of days, mentioning the dates of the first and last days respectively, for this does not show publication in each of the successive weeks.24 Nor is it enough to state that it was made for a period consisting of the requisite number of consecutive days instead of saying for a specified number of consecutive weeks.25 Nor does a statement that the notice had been published for a specified number of weeks consecutively " between” specified days, satisfy a requirement of a publication for that number of weeks, beginning and ending on those days.26
In specifying the days, the year as well as the months should be stated.27
Where the direction was simply to publish in a newspaper, proof of publication in the “Peoria Democratic Press," without " that it be published in the newspaper published in the city of New York, entitled 'The Evening Day Book," " in the absence of any evidence of the exist ence of two papers with the title of Day Book. S. P., Waters v. Waters, 7 Misc. 519, 27 N. Y. Supp. 1004.
22 Such an affidavit in the words of the statute was however sustained in Sexton v. Rhames, 13 Wisc. 99, against collateral attack after judgment.
23 Johnson v. Robertson, 31 Md. 476; Oswald v. Kampmann (U. S. Circ. Ct., W. D. Texas, 1886), 28 Fed. Rep. 36, concedes this rule, though holding the objection not available in a collateral proceeding.
24 Lawrence v. State, 30 Ark. 719; Anon., 1 Wend. 90; Godfrey v. Valentine, 39 Minn, 336, 40 N. W. Rep. 163; Frisk v. Reigelman, 75 Wisc. 499, 43 N. W. Rep. 1117, 17 Am. St. Rep. 198.
25 Jenkins v. Jenkins, 16 Ala. 693. 26 Kellogg v. McLaughlin, 8 Ohio, 114; Bunce v. Reed, 16 Barb. 347. Contra in Swayze v. Doe, 21 Miss, 317, however, where a general statement of publication in the terms of the statute was held sufficient against collateral attack after judgment, notwithstanding it was followed by particulars according to which it would appear that the statute had not been complied with. These particulars the court held might be rejected as surplusage, but upon the now generally received doctrine of the effect of recitals, etc., this case is of doubtful authority.
27 In King o. Harrington, 14 Mich. 532, which was ejectment turning on a title acquired under an attachment sale, the affidavit of publication in the attachment case stated publication for six successive weeks “preceding the said 23d day of September,” and the notice itself was not dated. Held, that the proof did not show that the notice or publication conformed to the statute, as there were no dates showing when the notice was given. Judgment reversed on this ground.
stating that that was a newspaper, was held sufficient in a collateral proceeding questioning the title. 28 But where the statute required publication in a newspaper of general circulation in the county, the affidavit is defective unless it shows the fact of circulation.20
32. — form.]-An affidavit referring to the order is not de fective for want of a title, if the order be entitled. And an affidavit annexed to a copy of the notice and stating that the " foregoing was published,” sufficiently refers to the preceding notice 30
33. Amending proof of publication.]— The rules restricting amendment of an affidavit made to procure an order to serve by publication, do not apply against amending the affidavit made to prove the fact of publication where this latter does not confer jurisdiction, but simply perfects the proof of a jurisdiction which had been already acquired. 31
Such an amendment extends no further than to make the record speak the truth as to the acts that were done in perfecting jurisdiction.82
34. Collateral attack.]— In what has here been said respecting the proper procedure, it is not to be understood as implied that a deviation is always fatal to the result, for in many cases if the defect is not jurisdictional it may be cured by a recital in the judgment or final order, so far at least as to sustain the proceeding against attack in any fresh proceeding, and to confine the objector to seeking a remedy, if any, by motion in the original cause.
28 Jackson v. Cummings, 15 Ill. 449. 29 Spalding v. Fahrney, 108 Ill. App. 602. 30 Jackson v. Cummings, supra (notice of publication for taxes). 31 Foreman v. Carter, 9 Kans. 674; Johnson v. Robertson, 31 Md. 476; Weaver v. Roberts, 84 No. Car. 493; Boham v. Stewart Bros. '& Co., 109 La. 999.
32 S. P., Williams v. Stevenson, 103 Ind. 243 ; s. C., 2 N. E. Rep. 728 (afixing jurat nunc pro tunc to affidavit of posting the notice). Challiss v. Headley, 9 Kans. 684 (holding it error to refuse to allow proof of publication with the wrong notice attached to it, to be amended by filing the proper notice with proof of its publication, in support of the judgment).
33 In Beattie v. Wilkinson, 36 Fed. Rep. 646, such recitals in a judgment were held presumptive evidence of compliance with statutory requirements
, the papers themselves being lost from the court files.
FORM No. 215.
Affidavit of publication.—Common form. [Title of court and cause.] 34
[Venue.] A. B., being duly sworn, says, that he is the printer [or, the publisher, or the foreman, or, the principal clerk, or otherwise designate in conformity, with statutory requirements, or court decisions]35 of [The New York Law Journal]38 a newspaper (printed and] published in the [city of
in the] county and State of
[and of general circulation within the said county)." That the annexed notice was duly published in said newspaper38 (once in each week for six successive weeks] commencing on the day of
19 [and was also published on the
34 l'nnecessary when the affidavit is attached to other papers entitled in the cause, or when the copy of the published notice shows the action or proceeding in which the affidavit is made. See paragraph 32 of this article.
39 The usual practice has been to publish the notice seven times under the requirement of once a week for six weeks (see Young v. Fowler, 73 Hun, 179, 25 N. Y. Supp. 875), and to insert the words seven times " after the word " weeks.” See Hatfield v. Malcolm, 71 Hun, 51. 24 N. Y. Supp. 596, 23 Civ. Pro. 197.
35 See paragraph 29 of this article.
36 See paragraph 31, id. Follow name of paper as it is inserted in the order of publication.
37 This latter clause held necessary under a statute requiring publication in a newspaper of general circulation in the county. Spalding v. Fahrley, 108 Ill. App. 602; Gallagher v. Johnson, 65 Ark. 90.
An affidavit of publication for “six successive weeks ” does not show publication once in each of these weeks. Godfrey v. Valentine, 39 Minn. 336, 40 N. W. Rep. 163; Frisk v. ReigelMan, 75 Wisc. 499, 43 N. W. Rep. 1117, 17 Am. St. Rep. 198.
RETURNS. 1. Returnable process.
14. Neglect to return. 2. Venue.
15. Amending without leave. 3. Date of receiving the process. 16. – by leave. 4. Date of return.
17. -- notice. 5. Date of the act done.
18. Reserving rights of third persons. 6. Reference to the instrument 19. Impeaching.
served. 7. Description of act done.
FORMS. 8. Matters not within official duty. (216) Return of service: short 9. Place.
form. 10. Signature.
(217) The same; another form. 11. - official addition.
(218) The same; service on several 12. Term expired.
persons. 13. Mode of making.– Filing.
1. Returnable process. ]- To determine whether a return is appropriate, in lieu of an affidavit or other common law proof, we may look to the process or order to see if its terms made it the duty of the officer to execute it; in such case the paper, by whatever name it may be known, is returnable process, even though it does not contain express words directing a return.
If it is not directed to any officer, and does not in terms charge any officer with its execution or service, the service of it, though made by an officer, should be proved by his affidavit and not by a return. 40
2. Venue.]—A venue, if essential in any case," is not so in the ordinary case of an officer making a return to the court of which he is an officer.
40 Utica City Bank v. Buell, 9 Abb. Pr. 385, 17 How. Pr. 498. (Order that debtor appear for examination in supplementary proceedings.) So, also, if service made outside of the locality of the officer's authority. Farmers' L. & T. Co. v. Dickson, 17 How. Pr. 477, 9 Abb. Pr. 61 (service by sheriff outside of his county); Morrell v. Kimball, 4 Abb. Pr. 352 (service by sheriff of another State).
The New York statute requires that " a sheriff or other officer to whom a mandate is directed and delivered, must execute the same according to the command thereof, and make return thereon of his proceedings under his hand." Code Civ. Pro., § 102. “Mandate” here includes a “writ, process, or other written direction ” lawfully issued by a court, or judge, or a person acting as a judicial officer and “commanding a court, board, or other body, or an officer
, or other person, named or otherwise designated therein, to do, or to refrain from doing, an act therein specified.” Id., $ 3343, subd. 2.
41 Omission was disregarded in Knowles v. Gaslight, etc., Co., 19 Wall. 58, when drawn in question collaterally in action on judgment founded on the return.