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FORM No. 217.
The same; another form. [Venue.]
I hereby certify that I have this day served the within (writ] upon the within named [name person accurately] by delivering to and leaving with him, at , in the county of a true copy thereof.
[Date and signatures as in previous form.]
FORM No. 218.
The same; service upon several persons. [As in previous forms to name of person served, continuing:] by delivering to and leaving with each of said persons a true copy thereof.
3 Service of a copy on each must
be shown. See note to paragraph 7, p. 369, supra.
[The forms peculiar to personal and constructive service of pro cess to acquire jurisdiction, such as the summons in an action, wil be given in connection with SUMMONS. The modes of service here stated are those applicable to proceedings in a cause of which the court already has jurisdiction.] [For list of Forms, see p. 406.]
I. MODE OF SERVICE IN GENERAL. 25. Service on attorney's partner. 1. Copy or certified copy.
26. Death of client. 2. By whose hand made.
27. Assignment. 3. Mode.
III. SERVICE ON CLEBK. 4. Showing original. 5. Service such as to make disobe
28. Service on clerk of court. dience a contempt.
IV. SERVICE PERSONALLY, OB AT OP6. Withdrawing service.
FICE OB RESIDENCE OF ATTOBNET. 7. Refusal to accept.
29. Personal service. 8. Days and hours of personal ser 30. At office, on clerk, partner, or vice.
person in charge. 9. Fractions of a day.
31. Office closed. II. SERVICE ON PARTY, ATTORNEY, OR 32. Office open and empty. COUNSEL.
33. Getting in. 10. Papers to affect party who has
V. SERVICE BY MAIL. not appeared.
34. Place of mailing. 11. --- who has appeared in per 35. Wrapper. son.
36. Postage. --- who has appeared by at 37. Request to return if not called torney.
for. 13. Attorney's power to proceed after 38. Several to one address. judgment.
39. Post-office, and letter-box. 14. -- to give consent affecting ap 40. Double time on service by mail. peal or review.
41. Time of service by mail. 15. Power of client to proceed by new 42. Requirements to be strictly obattorney.
served. 16. Appearance on appeal from judg
VI. PROOF OF SERVICE. ment presumed authorized.
43. Mode. 17. Client bound by service after
44. Allegations in affidavit. judgment on attorney, though
45. Place. neither appears.
46. Indirect proof of service. 18. – interlocutory proceedings overlapping judgment.
47. Disproving service. 19. — service on attorney for party
VII. DEFECTIVE SERVICE AND REMEcharged or discharged by judg.
DIES THEREFOR. ment.
48. Approximate service. 20. Specific property.-Fund in court. 49. Defective service. 21. Actual entry of final judgment 50. Returning the test.
51. Specifying objections. 22. Effect of statute as to proceed 52. Re-serving returned paper. ings after judgment.
53. Motion to determine disputed 23. -- after attorney's death.
service. 24. Service on counsel.
54. Relief against illegal service. For Forms, see p. 406.
1. MODE OF SERVICE IN GENERAL. 1. Copy or certified copy.]— The general principle is that where the object of service of a copy is merely to give notice of the order of court, an uncertified copy of the original order is sufficient, with proper notice that it is a copy. But where the person who is served, or whose attorney is served — whether he be a party or a stranger to the action or an officer of the court — is expected to act on the authority of the order, a certified copy should usually be served.
The rule is similar where the object of the service is to give notice of a matter or step in the action.
2. By whose hand made.]- In the absence of any statute forbidding service of papers to be made by a party, a party is competent, since the law allows parties to testify in their own behalf, to make service of papers, and even where, as in case of a summons, the party cannot make service, he may make proof of service, 8
A process or mandate, if directed to an officer, must be served
4 Smith v. Kerr, 49 Hun, 29, 17 N. Y. St. Rep. 351, 1 N. Y. Supp. 454, 15 Civ. Pro. Rep. 126. See Tyler v. Simmons, 6 Paige (N. Y.), 127, 132, holding that service of a copy of an order, or at least a formal notice of entry, is necessary to limit the time to appeal. See Code Civ. Pro., 88 1325, 1343, 1351, regulating service of a copy of an order, with written notice of entry, in order to start the time running within which to appeal.
In many cases the statute or order contains directions on this point, requiring a certified copy where, upon general principles, it would not be essential.
Strictly speaking, where an uncertified copy is served, it is to be regarded as a copy of the original rather than a copy of the certified copy; and notice given accordingly.
As to with what signature or indorsement a paper should be served, see COPIES, pp. 43, 44, and INDORSEMENTS, pp. 64, 65, of this volume.
5 Smith v. Kerr, supra (service of copy of offer of judgment and attorney's authority to make).
6 Such as exists in the case of service of summons, N. Y. Code Civ. Pro., $$ 425, 3156, or the process to commence a special proceeding (Id., § 433), prescribed, perhaps, because, if allowed in such a case, a party might recover, on default, on his own oath. If served by a party in violation of statutory provision, it is an irregularity only. Myers v. Overton, 2 Abb. Pr. 344. The attorney for the party may make the service. Whitewater, etc., Bank v. Estenson, 68 Minn. 28.
7 Wetmore r, Parker, 52 N. Y. 450, aff'g, 7 Lans. 121. (Service of citation on probate in Surrogate's Court.)
Contra, Marion County v. Stanfield, 8 Iowa, 406, holding service of a notice of appeal insufficient because made by the party, the ground of the decision being that there was nothing in the Code to authorize such a service.
& White v. Bogart, 73 N. Y. 256. (Affidavit of plaintiff to genuineness of signature of defendant to admission of service.)
by the officer or his deputy; ' if merely directed to the person or party affected thereby, it may be served by any person in the absence of any rule of court or statute to the contrary. 10
In order to prevent abuse, the New York General Rules of Practice" require an affidavit of service of summons and complaint, if made by another person than the sheriff, to show that the server was not less than eighteen years of age, that he knew the person served to be the person mentioned and described in the summons as defendant therein, and that he left the copy with defendant as well as delivered it to him, besides stating when, and at what particular place, and in what manner he served it.
It is the better practice to include all these details in an affidarit of service of any process, or of any paper in the nature of original process, whereby a special proceeding is commenced, such as an order to show cause on an original petition, because, although the court rule does not expressly extend beyond summons and complaint and notices therewith, the statute which regulates the service of a summons applies likewise to the service of the paper which commences the special proceeding. 12
3. Mode. ]—Where service is required without qualification, de livery of a copy is intended ;13 and the reading even of a duly authenticated process or notice, by a proper officer, to the party or person to be charged, is not sufficient14 without delivery.
Where reading and delivery are required, the refusal of the person to whom delivery is made to hear the reading is eno:gh to excuse omission to read.15
4. Showing original.]— It is not necessary to show an original order on serving a copy,16 unless for the purpose of putting in contempt for disobedience. Other consequences of disobedience follow, without proof of the showing of original."?
9 Hickey 0. Forrestal, 49 Ill. 255; Pelham v. Edwards, 45 Kans. 547.
10 Cummings v. Akron Cement, etc., Co., 6 Blatchf, 509, subpena to witness. Held, that service by a private person is sufficient. The subpæna, unlike the summons, is directed, not to the marshal, but to the person himself.
11 No. 18. 12 N. Y. Code Civ. Pro., $ 433. 13 See Smith v. Kerr, 49 Hun, 29, 17 N. Y. St. Rep. 351, 1 N. Y. Supp. 454. 14 See NOTICE, paragraph 1, page 190.
People v. McHatton, 2 Scam. (III.) 566. (Service of order on officer to make return, not sufficiently made by reading; motion founded on such service denied.)
Hart v. Gray, 3 Sumn. 339 (holding appointment of guardian a nullitv. because notice in writing, signed, etc., required to be served, was only read to the party).
16 Campbell v. Shrum, 3 Watts, 60; Norton v, Meader, 4 Sawy. (U. S.) 619. For other cases see proof of service of SUMMONS.
10 Whitman v. Johnson, 10 Misc. 730, 31 N. Y. Supp. 805.
5. Service such as to make disobedience a contempt.] — In serving a paper, disobedience of which it is desired may be punishable as a contempt, exhibition of the signature of the judge, if it be a judge's order, or, if a court order, the service or exhibition of a certified copy, is necessary, 18 and a copy must be left with the person served ; 19 and the affidavit should also state that the person making the service knew the person served to be the one intended; but the requirement prescribed for service of summons,20 that the server should be not less than eighteen years of age, does not apply even by analogy to such a paper, unless it be in the nature of original process, such for instance as an order to show cause against an officer of the court. 21
6. Withdrawing service.]— One who having made service immediately receives the paper back again, instead of leaving it with the person served, cannot take advantage of the delivery as ser
7. Refusal to accept.] —An effort to make service, is not de seated by the refusal of the person to whom it was addressed to receive the paper tendered to him, or to listen to its reading when the case is one where reading is required. Laying the paper on the table before him is a delivery to him, and leaving it there, is sufficient.23
8. Days and hours of personal service. ]— Service, if personal, on party or attorney, or on an attorney during his absence from his office by leaving the paper with his partner or clerk therein,
17 Such as the right to vacate an inquest taken in violation of a stay so served. Bank of Utica v. Kibby, 7 Cow. 148.
Or the right to enforce order for bill of particulars. Gross v. Clark, 1 Civ. Pro. Rep. (McCarty) 17.
18 Bank of Utica v. Kibby, 7 Cow. 148; Mayor r. Conover, 5 Abb. Pr. 244, 19 American Mortgage Co. v. Sire, 103 App. Div, 396, 92 N. Y. Supp. 1082. 20 By N. Y. Gen. Rule No. 18. 21 Or other notice whereby a special proceeding is begun. Code Civ. Pro., $ 433.
22 Earll 1. Chapman, 3 E. D. Smith, 216 (dismissing appeal because the notice of appeal served was immediately taken back for the purpose of serving it on another party). Beekman r'. Cutler, 2 Code Rep. 51.
23 Nathan v. Sutphen, 68 Cal. 267, 9 Pac. Rep. 110, and see paragraph 3 (above).