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If an under-sheriff or deputy sheriff is a party, the case is within the mischief of the statute, and service should be made by the coroner, or by a private person if the statute does not forbid.35
3. When must be by officer.] — If the process be directed to an officer for service, or if the statute36 or the direction of the court37 prescribes service by an officer, a private person cannot make service, 38 nor another officer not expressly authorized to act in such case.
4. Age of server.] —At common law infancy is not a disqualification of a person otherwise authorized to serve process.
The New York rule is that no personal service of summons, and of the complaint or notice, if any accompanying the summons, shall be made by any person who is less than 18 years of age. 40
on his service will be enjoined, for public policy is opposed to service by a sheriff who is interested personally). In Erie county, New York, the county treasurer executes the functions of the coroner in these matters. N. Y. Code Civ. Pro., & 181a.
35 See Minott v. Vineyard, 11 Iowa, 90. (Service on sheriff, when a party, not to be made by his deputy, because the sheriff is responsible for the deputy's acts. Therefore service by special coroner is good.)
Graves v. Smart, 75 Me. 295. (Under a statute providing that where i deputy sheriff is a party, the writ may be served by another deputy, where the sheriff was also a coroner, and the writ directed to a coroner was served by him as sheriff, held illegal.)
Gage v. Graffam, 11 Mass. 181 (service by one deputy, of writ against another deputy; objection waived by pleading).
36 As in the United States courts. U. S. R. S., $ 680; Eq. Rule 15. Also in private actions for a statute penalty or forfeiture. N. Y. Code Civ. Pro., $ 1895.
37 As contained in the process itself in some jurisdictions. See p. 379.
38 Schwabacker v. Reilly, 2 Dill. 127 (writ being directed to marshal, default refused on service by private person).
Arnold r. Wynn, 26 Miss. 338 (writ directed to sheriff, held not properly served by justice of the peace who was acting coroner).
Beard v. Smith, 9 Iowa, 50 (holding service by coroner irregular because the disqualification of the sheriff, which the statute specified as the condition of the coroner's authority, was not manifest, but only matter of inference).
Compare, to the contrary, Sawyer v. Price, 6 Ala. 285.
Garner ». Clay, 1 Stew. (Ala.) 182 (service by the sheriff-elect [before he was qualified), made as the deputy of his predecessor, after the latter's term had expired, held valid, as the acts of a sheriff de facto).
39 Moore v. Graves, 3 N. H. 408 (holding, on examination of the authorities, that an infant can be deputed to serve a writ, because that act is purely ministerial).
40 N. Y. Gen. Rule No. 18, and p. 380 of this volume. S. P., Howard *. Gal. loway, 60 Cal. 10.
Service by infant has been held insufficient in Harvey 1. Hall, 22 Vt. 211; S. P., Vail v. Rowell, 53 Vt. 109; Tyler v. Tyler, 2 Root (Conn.), 519. Contra, Moore v. Graves, 3 N. H. 408.
5. Place of service.] -As a general rule it is indispensable that personal service, relied on to give jurisdiction, should be made within the territorial jurisdiction of the court.
The main exception to this rule is that made by statute as to service by publication and mailing, which provides for actions in which the court may exercise jurisdiction on matters within the territory upon service made under its direction bevond its limits. There is also another exception in the case of local courts of limited jurisdiction, where service anywhere within the State, or within specified portions of it, is allowed by statute, as it is in case of the county courts, or city court of the city of New York, 43 in cases where such courts have jurisdiction of the action itself.
6. Original and copy.] — In theory of law, the original process is filed as the record, and served by delivering a copy.
The copy delivered need not be a certified copy,"4 unless attestation is expressly required, in which case it is essential.95
7. Affidavit of service — who may make.] — Where the clerk who made the service had left the State, a memorandum by him, and an affidavit of information derived from him, were received as proof.46 But in such a case, where there was no proof that the clerk knew the person so served to be the defendant, and that he left with him the summons, etc., nor any statement of the place and manner of service, it was held insufficient to sustain the judgment entered thereon. 47
8. —- contents; general rule.48]—An affidavit of service of summons must show affirmatively a compliance with all the require
41 Brooklyn Trust Co. 1. Bulmer, 49 N. Y. 84; Howell v. Manglesdorf, 33 Kans. 194, 5 Pac. Rep. 759, and cases cited.
42 See SERVICE BY PUBLICATION, p. 663; Shepard v. Wright, 35 Hun, 444, afld, 113 N. Y. 582.
43 N. Y. Code (iv. Pro.. $$ 347, 338; Raven 1. Smith, 148 N. Y. 415. Same principle before the statute. Porter v. Lord, 4 Abb. Pr. 43, 4 Duer, 682, 13 How. Pr. 254. Otherwise if the courts have not such jurisdiction. Landers v. Staten Island R. R. Co., 53 N. Y. 450.
44 Stone 1'. Anderson, 25 N. II. 221 (holding that a private person who may make service of process by copy, may certify and swear to the copy).
45 Bank v. Perdriaux, Brightly, 67 (setting aside service because statutory requirement that copy be attested was not complied with).
Curtis 1. Herrick, 14 Cal. 117; Dresser v. Woods, 15 Kans. 344. 46 Jackson 1. Ilowd, 3 (ai. 131, Col. & C. Cas. 474. 47 Spaulding 1. Lyon, 2 Abb. N. C. 203. 48 An affidavit of service, drawn merely to present a prima facie case of compliance with the requirements of statute and court rule, need not substantiate
ments of the law o so definitely that an indictment could be maintained against the deponent if it were not true. 50
It must state time and place with certainty, and must allege that the server knew the person served to be the person mentioned in the summons as defendant therein. It is not enough to allege that the person “is personally known to this affiant,953 nor that he acknowledged himself to be the person mentioned as the defendant in the summons.
It must state that the copy was left with as well as delivered to the defendant. 55
On defendant's refusal to accept a copy of a summons which is offered to him in a civil and proper manner, after informing him what the paper is, service may be made by depositing the process in some appropriate place in his presence, or (if he makes that impracticable) where it will be most likely to come into his possession.56
the claim of knowledge, or detail the acts of the process server; for instance, it is enough to state in the atlidavit that a copy of the summons was delivered to and left with” the defendant without specifying the manner of so doing. When, however, the regularity of the service is attacked, the formal affidavit of service must be supplemented.
The consideration in the text, and the accompanying forms of affidavits, cover only the essential statements to make out a prima facie case of effective service.
49 McMillan 1. Reynolds, 11 Cal. 372. 50 Van Wyck v. Reid, 10 How. Pr. 366. 51 N. Y. Code Civ. Pro., § 434. An allegation of service on or about ” a specified day is not sufficient. Hickey v. Yvelin, 4 Monthly L. Bul. 70.
An affidavit of service not specifying the date of service, held sufficient where the jurat was dated. Reed v. Catlin, 49 Wis. 686, 6 N. W. Rep. 326.
52 N. Y. Code Civ. Pro., § 434.
If the county is mentioned and the state omitted, the court can take judicial notice that the county named is within the state. Zwickey r. Haney, 63 Wis. 464, 23 N. W. Rep. 577. Compare p. 360, etc., of this volume.
An affidavit failing to state place of service, as required by statute, was held fatally defective in Weis v. Schoerner, 53 Wis. 72, 9 V. W. Rep. 794.
53 Savles v. Davis, 20 Wis. 302. 54 Cole v, Allen, 51 Ind. 122.
55 N. Y. Gen. Rule No. 18; Matteson 1. Smith, 37 Wis. 333. See Vitolo v. Bee Pub. Co., 66 App. Div. 582, 73 N. Y. Supp. 273; Johnston v. Mutual Reserve Life Ins. Co., 104 App. Div. 550, 93 N. Y. Supp. 1050.
Mather 1. Parsons, 32 Hun, 338, where service was held fraudulent and insufficient to sustain judgment entered thereon, because, on being served in plaintiff's presence, plaintiff took it away before defendant had read it, saying that he would attend to it.
GG Borden i. Borden, 63 Wis. 374, 23 N. W. Rep. 573; Anderson 1. Abeel, 96 App. Div. 370, 89 N. Y. Supp. 254; Wright 1. Bennett, 30 Abb. N. C. 65, and note; Correll r'. Granget, 12 Misc. 209, 34 N. Y. Supp. 25.
9. — service of indorsement.] — Since an indorsement on the summons which is not part of the process (such as an indorsement put upon it by the sheriff) need not be served, — if there be an indorsement such as is required by law to be served (as in the case of the object of an action brought for a statutory penalty ) — proof of service of summons, to show that a copy of such indorsement was served, must expressly state that it was included in the copy served.68
If the accompanying notice is required by law to be served with the process, the affidavit or certificate of service must state that this was done. It is not enough to show that it was done upou the same day. 5°
10. – alleging age of server.] — Under the rule as to age, the allegation as to the age of the server must relate not merely to age at the time of making the affidavit, but must enable the court to see the required age at the time of making service. 61
11. Official certificate or return.] — To what has already been said of return of service,62 it is only necessary to add, that if a sheriff or other officer makes service beyond the limits of his bailiwick, although his certificate would not be evidence, he may make
But where in such case the affidavit stated that the deponent personally served the summons by placing the writ on the ground, and holding up the original, within twenty or thirty yards of defendant, who had run away for the purpose of avoiding service, held insufficient. O'Sullivan r. Murphy, Law Times, Jan. 17, 1885. Compare Matter of McGarren, 112 App. Div. 503, 98 N. Y. Supp. 415.
57 See p. 633 of this volume.
Under the Michigan statute, where the affidavit of service of summons does not show that the affidavit of the amount claimed to be due was served with the process, the affidavit of service is not prima facie evidence of the facts stated therein. Gordon v. Sibley (Mich., 1886), 26 N. W. Rep. 485.
59 Gordon 1'. Sibley (abore).
Howard 1. Galloway, co Cal. 10 (holding an asfidavit failing to show the deponent to be over 18, insufficient to sustain a default); S. P., Weil t. Bent, Id. 603; Maynard r. MacCrellish, 57 Cal. 355.
61 Peck ?". Strauss, 33 (al. 678 (conceding that omission to show age at time of service would be fatal to the affidavit if objected to by direct proceeding, but holding remedy to be to move, and the objection not available in a col. lateral action). The court may take judicial notice that an attorney must be at least twenty-one years of age. Booth v. Kingsland, 18 App. Div. 407, 46 N. Y. Supp. 451.
62 See article on RETURYS, p. 366 of this volume.
affidavit of service with the same effect as a private person.63
It should state time and place84 with certainty.
12. Defects in proof not jurisdictional.] — If service is regular, defects in the proof of service do not prevent jurisdiction from attaching, but they may be amended, or omissions supplied nunc pro tunc.65 It may be otherwise of subsequent steps, if such that there is no authority for them except a statute which requires proof of service as a preliminary.
FORM No. 369.
Affidavit of personal service. [Title of court and cause.] [Venue.67]
M. N., being duly sworn, says: That he is [a clerk in the office of plaintiff's attorney herein] and is over the age of twenty-one years [or, if a minor, state his age]68; that, * on the
19 at [stating the particular place, for instance, the counting-room of the above-named Y. Z., No. street, in the city of New York], he served the within [or, annexed] summons [and complaint — or, and notice of judgment in case of default - or, and notice of no personal claim — or, and indorsement of reference to statute'] personally on the abovenamed Y. Z., defendant herein, † by delivering a copy thereof to him personally, and leaving the same with him [if not received,
63 Thebaut v. Canova, 11 Fla. 143.
Where the affidavit of service states that defendant was served in a specified county, it may be presumed in aid of jurisdiction that he was a resident thereof. Pellier v. Gillespie, 67 Cal. 582, 4 Pac. Rep. 1137; again, 8 Pac. Rep. 185, following Calderwood v. Brooks, 28 Cal. 151.
64 Weis v. Schoerner, 53 Wis. 72, 9 N. W. Rep. 794. (An affidavit failing to state place of service as required by statute, held fatally defective.)
66 Robertson v. Robertson, 9 Daly (N. Y.), 44; Maples v. Mackey, 89 N. Y. 146.
Affidavit of person who made service is unnecessary when there is other competent proof of the service. Murphy v. Shea, 143 N. Y. 78.
Contra, Coffee v. Gates, 28 Ark. 43. ( Failure of person appointed by officer to make return to verify its correctness by affidavit, prevents jurisdiction.)
66 See, for instance, Newby v. Perkins, i Dana, 440.
67 Venue is essential in any affidavit. See, when jurisdiction of an inferior court is sought to be established. Frees 1. Blyth, 99 App. Div. 541, 93 N. Y. Supp. 103.
68 Must be not less than eighteen at time of service. N. Y. Gen. Rules No. 18.
69 People ex rel. Martin v. Walters, 15 Abb. N. C. 461.