ing the same with W. Z., whom he knew to be the wife [or, child, or, servant] of said defendant [or if the name of the person is unknown, with a person at the door of defendant's said residence, who opened the door in response to deponent's ringing the doorbell], and who appeared to be of proper age to receive such service, to wit, over the age of fourteen [or, about the age of ] years, and who received the same [or stating circumstances of delivery if it was not received].

55

street, in

56

in

[Or if access could not be obtained] to wit, by affixing a copy of said summons [and notice or, indorsement thereon] and order to the outer door [or specify other door] of the residence of said defendant, at No. the county of , in this State; that deponent was not able, upon reasonable application, to obtain admittance thereto, nor to find any person of proper age at such residence who would receive the same. That said residence was closed, and defendant was unable, by ringing and knocking, to find any person on the premises [or otherwise state reasonable effort to obtain admittance and find a person to receive the paper].

57

19

at

IV. That on the day of aforesaid [naming place of defendant's residence], deponent deposited in the post-office at said place another copy of said summons [and notice or, indorsement thereon] and order, properly inclosed in a post-paid wrapper, addressed to said defendant Y. Z., at his said place of residence.

[Jurat.]

55 As to all these particulars, see note 31, p. 655.

56 As to these particulars, see note 31, p. 655.

[Signature.]

57 As to mailing, see note 50, p. 660, and PUBLICATION, p. 341, etc.; and MAILING, p. 397, etc.

For list of Forms, see p. 671 of this volume.

1. Power of the court.] Under the Codes of Procedure the cases and manner in which a plaintiff may proceed against a defendant by serving the process upon him by publication, are generally explicitly prescribed by statute; the power is commonly regarded as purely statutory 58 (except, of course, those cases where the proceeding is purely in rem, and where personal service is of course unnecessary); and a substantial compliance with the statute is strictly required.59

The courts of a State will give effect to a judgment thus regularly taken within the State and under its statutes; but the question whether such a judgment is enforcible in other jurisdictions is another matter.

60

58 To the contrary, Grassmeyer v. Beeson, 13 Tex. 524, where the court say that in the absence of statutory authority the courts [of Texas] were, from the necessity of the case, compelled to adopt some course of procedure and rule of practice to be applied in cases like this in order to administer justice and adjudicate the causes of citizens against non-residents.

66

In Kegans v. Allcorn, 9 Tex. 25, this court adopted the rule that courts were competent, as a matter of practice, to adopt a mode of making parties where the law prescribed none." Under this rule rights have been acquired which will not be disturbed unless in obedience to the mandate of absolute legal principle.

59 People v. Huber, 20 Cal. 81 (holding that under statute authorizing application after summons had been issued, judgment on an order made before issue of summons could not be sustained). S. P., Ricketson v. Richardson, 26 Cal. 149: Galpin v. Page, 18 Wall. 350, 369. For other authorities see notes to following paragraphs.

60 The leading cases are Pennoyer v. Neff, 95 U. S. 714, 722, and Hart v. Sansom, 110 id. 151.

In the former case it was held that the failure to serve personally within the jurisdiction takes the case out of the constitutional provision giving judg. ments of one State full faith and credit in another; and the court lay down the doctrine that such a judgment is not binding except to dispose of property brought into the custody of the law in the action before judgment. Hence it was held that a sheriff's sale of other property, on execution, gave no title; 8. P., Wood v. Stanberry, 21 Ohio St. 142; Lutz v. Kelly, 47 Iowa,

62

2. in New York.]-By the New York statute the power to order service by publication is confined to the Supreme Court, the county courts, and the City Court of the city of New York; and can only be exercised by a judge of the court, or the county judge of the county where the action is triable.63

64

65

3. Incapacity of party.]— Infancy and insanity constitute no objection to service under the statutes, unless expressly ex307. Compare Gibbs r. Queen Ins. Co., 63 N. Y. 114; Hunt v. Hunt, 9 Hun, 622; Cassidy r. Leitch, 2 Abb. N. C. 315; Schwinger r. Hickok, 53 N. Y. 280. In the case of Hart v. Sansom, 110 U. S. 151, it was further held that an action to remove an alleged cloud on title was not within the exception, at least as against one who is not a citizen or resident of the State; and although the courts of the State where a judgment declaring the claim of such an one unfounded, has been recovered, on service on him by publication only, may feel bound to give it effect, no court deriving its authority from another government will recognize constructive service as bringing the person within the jurisdiction. Hence it was held that such a judgment did not bar the absentee from asserting his claim in a court of the United States (S. P., Clark r. Hammett, 27 Fed. Rep. 339, 21 Repr. 772). And the court say that courts of equity in bills for removing cloud on title, for specific performance and the like, proceed in personam, not in rem; and cannot without legislative authority appoint a trustee or receiver to convey for an absentee, nor by mere force of its decree divest a title.

So far as the last statement denies the power of a court of equity to cancel an instrument, and treat the title as resting where it would have appeared to be but for such instrument, it is contrary to what is understood to be the practice in this State at least. So far as it denies the power to transfer a recognized title it is in accord with our law. In English law this lack of power was supplied in 1850 by Lord Brougham's Trustee Act, introducing the practice of "vesting orders." 13 & 14 Vic., chap. 160; am'd by 15 & 16 Vic., chap. 55. See, also, 47 & 48 Vic., chap. 61. For the N. Y. Statute see Code Civ. Pro., § 718.

Compare Palmer r. McCormick, 28 Fed. Rep. 541 (sustaining foreclosure of mortgage on service by publication under State statute); Oswald v. Kamp mann, Id. 36 (sustaining proceeding to foreclose a lien).

In Brooklyn v. Etna Life Ins. Co., 99 U. S. 362, and Empire Township v. Darlington, 101 U. S. 87, a decree adjudging municipal bonds void was held not binding on non-resident holders served only by publication.

In Cooper v. Reynolds, 10 Wall. 308, it was held (recognizing these principles) that if property is attached before judgment, the judgment may direct its sale; and, in Brown v. Tucker, 7 Colo. 30, 1 West. Coast Rep. 489, that even though the judgment be simply for money, the attached property may be sold on a general execution pursuant to statute, equally as if the jdugment and the execution were specific (reversing decision to the contrary below).

61 N. Y. Code Civ. Pro., § 440.

62 But similar provisions give the like power to surrogates' courts, §§ 25212524. Before an order can be granted by a judge of the City Court, proot must be submitted that an attachment has been issued (Code Civ. Pro.. $3170); it is a jurisdictional requirement, Wilson v. Lange, 40 Misc. 676, 83 N. Y. Supp. 180.

63 As to the distinction between orders of the court and of a judge, see pp. 88-94, 212, of this volume.

64 Bryan v. Kennett, 113 U. S. 179; Syracuse Sav. Bank v. Burton, 6 Civ. Pro. Rep. (Browne) 216, 219.

65 McCormick v. Paddock (Neb., 1886), 30 N. W. Rep. 602.

cepted. But one seeking an order for service by publication in such a case ought to disclose the incapacity if known, so that the court may direct a copy of the summons to be delivered to a next friend.

4. Preliminaries to the application.] Under the New York statute actual effort to serve the defendant is usually necessary, unless it can be definitely ascertained that he is beyond the jurisdiction. A sheriff's attempt to serve is not necessary; but his return of inability to effect service, stating reasons, is competent evidence with other proof by affidavit to support the application.

If definite knowledge is lacking, such inquiries should be made in proper quarters according to the connections and usual resorts of the defendant, that the answers received may be competent evidence on the question of the residence and present whereabouts of defendant.

5. Proof of cause of action.] —The New York statute provides fully for proof of the cause of action before the court as a condition of taking judgment by default, if service without the State, or otherwise than personally, is relied on,66 and it accordingly dispenses with the old requirement67 that the applicant for the order must prove his cause of action by affidavit;68 and so far

66 N. Y. Code Civ. Pro., § 1216.

67 Still in force in some other States. Little v. Currie, 5 Nev. 90 (holding a statement in the affidavit, using the language of the statute that "a cause of action exists against defendant," is fatally defective).

Victor M. M. Co. v. Justice Court, 18 Nev. 21 (holding a statement that action was to recover a specified amount due from defendant to plaintiff, and for work done for defendant, insufficient, the statement as to the amount being due being a mere legal conclusion, and there being no statement that the work was due at defendant's request).

Forbes v. Hyde, 31 Cal. 342 (holding a statement that H. was "a necessary and proper party defendant,” but without stating facts in detail to show that he was, insufficient, even against collateral attack).

Holmes v. Holmes, 15 Neb. 615, 19 N. W. Rep. 600 (holding an affidavit stating no fact as to the cause of action by which the court could ascertain whether it was one of those wherein service could be made by publication or not, insufficient, notwithstanding a statement in the affidavit that the cause was such a one).

68 Field v. Malone, 102 Ind. 251, 1 Northeast. Rep. 507, (holding, on the contrary, that it is sufficient on this point to state that there is a cause of action in the plaintiff against the defendants, and show that it is connected with a contract. The court say: The statute does not contemplate a full statement of the facts constituting the cause of action in the affidavit for publication, nor is there any reason for requiring such a statement. The affidavit is not intended to inform the defendant of the particular character of the cause of

69

as the cause of action is concerned a verified complaint, duly au thenticated, and showing a sufficient cause of action against the defendant to be served, is now enough. If it be already on file, and it is not convenient to produce it, a copy alleged to be such in the affidavit will suffice, care being taken to mention the verified complaint in the order as a part of the foundation of the order. The cause of action must of course be one of which the court has jurisdiction.70

6. of non-residence, inability to serve, etc.] In accordance with the principle already stated" that a statute requiring an affidavit "to show," or to make proof, or the like, is not satisfied by an allegation in the words of the statute,72 but requires the statement of evidence from which the court can find the truth of such allegation,73- the affidavit must make proof of plaintiff's in

action urged against him, but its purpose is to exhibit to the court such facts as show that the case is one in which it is proper to give notice by publication. No useful purpose would be subserved by setting forth the facts at length; on the contrary, such a procedure would cumber the record and do no good at all).

So, also, in Gillespie . Thomas, 23 Kans. 138, an affidavit showing the action to be one in which service by publication might be had, was held, on the same principle, sufficient to sustain the order, though defective in not stating the cause of action more specifically and correctly.

Under the Kentucky statute, allegations in the bill, held insufficient on the ground that such allegations should have been made by affidavit. Lewlin's Heirs r. Clay, 4 Littell (Ky.), 283.

69 Defect in authentication of the verification held fatal. Williamson r. Williamson, 64 How. Pr. 450, 3 Civ. Pro. Rep. 69. The omission to verify 13 fatal. Luther r. Brison, 4 Monthly L. Bul. 91.

70 Bryan r. University Co., 112 N. Y. 382; Paget r. Stevens, 143 N. Y. 172; Chesley r. Morton, 9 App. Div. 461, 41 N. Y. Supp. 463; Haight r. Le Foncier, etc., 84 N. Y. Supp. 135. But the sufficiency of the complaint cannot be tested in the motion, unless it is plainly frivolous. Montgomery v. Boyd, 65 App. Div. 128, 72 N. Y. Supp. 611, 10 N. Y. Anno. Cas. 279.

71 Pages 11, 12, of this volume, and cases cited in notes.

72 Kennedy r. N. Y. Life Ins. & Trust Co., 101 N. Y. 487; rev'g 32 Hun, 35. In Kennedy r. Lamb, 182 N. Y. 228, 233, it is said (Vann, J.): An affiant who simply repeats the words of the statute, merely states his opinion upon the proposition to be proved. Proof requires that facts be stated from which the conclusion sought may be logically drawn."

73 For applications of this rule, see Victor M. M. Co. r. Justice Court, 18 Nev. 21, 1 West Coast Rep. 299 (requiring affidavit to set out what diligence had been used and what done in attempting to get information).

Forbes r. Hyde, 31 Cal. 342 (holding allegation that defendant was a necessary party, without stating facts to show it, insufficient to give juris diction).

Otherwise under a statute saying "that an affidavit must be filed that service of summons cannot be made within this State," etc. McCormick . Paddock (Neb., 1886), 30 N. W. Rep. 602.