2. Departure.]- Under the equity practice, and in those States where the commencement of an action is modeled thereon, the filing of the bill or complaint is the foundation of the suit; and if the process anticipates that, or there is a discrepancy between the two, the legal fault is in the process, and the remedy is to set aside the process.

57

Under the common law system, and in those States where, as in New York, the commencement of an action is modeled on such system, the issue and service of the process is the foundation of the suit; and if there is a discrepancy between the process and the complaint, the legal fault is in the complaint, and the remedy is to set that aside. But plaintiff may be allowed on terms to amend his summons so as to conform it to the complaint, and let the complaint stand.58

59

60

3. Right to move.]-A defendant, even though he has not been served, or who has been served with a substantially defective summons, has a right to appear specially and move to dismiss the suit for want of jurisdiction, if it is wrongfully proceeded with against him, as if he had been subjected to the jurisdiction.

4. Time to remove cause postponed.]- Pending a motion to set aside the service of the summons, the action is not deemed to involve a Federal question, because it has not yet been so far "brought" as to show that a removable controversy is involved.

5. Jurisdiction of person:- defects of process or of service.] If the summons itself is unauthorized, the motion will be to set it aside, and all proceedings founded on it.63

50 See 2 Northeast Rep. 866, note.

57 See, for instance, U. S. v. Eddy (U. S. Cir. Ct., N. D. Ohio, W. D. 1885), 28 Fed. Rep. 226.

58 Norton v. Cary, 14 Abb. Pr. 364, 23 How. Pr. 469; Olney v. Goodwin, 44 N. Y. Supp. 41, 78 St. Rep. 41.

59 Norton v. Cary, 14 Abb. Pr. 364, 23 How. Pr. 364. See, also, Article I of this Chapter, paragraph 1, and Noble v. Crandall, 49 Hun, 474. A motion to vacate an order of publication will be denied, when the only ground is that the defendant has no property in the state and plaintiff cannot enter judgment. Clark v. Boreel, 21 Hun, 594.

GO Lyman v. Milton, 44 Cal. 630.

61 See, however, as to leave in United States courts, and a comparison of the practice in different jurisdictions, Romaine v. Union Ins. Co., 28 Fed. Rep. 625; Barnes v. W. U. Tel. Co., 120 id. 550, 556.

62 Germania Ins. Co. v. State of Wisconsin, 119 U. S. 473.

63 For omission of infant plaintiff to have guardian ad litem appointed, see Hill v. Thacter, 3 How. Pr. 407; and Chapter II, Article VIII, supra.

For want of leave to sue, Finch v. Carpenter, 5 Abb. Pr. 225; and page S0 of this volume.

64

If the objection goes only to the mode of service, even though it be to the formality of the copy delivered, or to the jurisdiction of the judge to direct service by publication, etc., it is error to set aside the summons, or to vacate any accompanying provisional remedy; the motion should be confined to setting aside the objectionable act, and all proceedings founded thereon.65 This will leave the summons outstanding, and the action as truly in existence as at first, but will leave the court without jurisdiction of the person served; and the plaintiff can attempt service afresh.

64 Beacom v. Rogers, 79 Hun, 220, 29 N. Y. Supp. 507; Higgins v. Dewey, 27 Abb. N. C. 81, 34 St. Rep. 692.

65 For an extensive collection of cases on this subject of setting aside service of summons, see Hun's Court Rules, 1904 ed., pp. 119–129.

For motion on the ground that the copy served was not a correct copy, see People v. Great Western S. S. Co., 4 Monthly L. Bul. 64.

As to setting aside because day of service was Sunday or election day, see Cavendish v. Turnpike Co., 2 Vt. 531; Stapleton v. Reynolds, 5 Am. L. Rec. 242; Comer v. Jackson, 50 Ala. 384; Gladwin v. Lewis, 6 Conn. 49.

As to setting aside because the process delivered was immediately taken back with a promise to attend to it, see Mather v. Parsons, 32 Hun, 338.

See, for instance, Hyslop t. Hoppock, 5 Benedict, 447 (service set aside, but not process, on showing that the place where it was left was not defendant's residence).

As to setting aside service by publication for omitting to file complaint, see Kendall v. Washburn, 14 How. Pr. 380; Whiton v. Morning Journal Assoc., 23 Misc. 299, 50 N. Y. Supp. 897.

Clerk's omission to mark summons filed,- held not a ground to set it aside in Reed v. Curry, 35 Ill. 536.

As to setting aside service by publication for omission to mail, see Clark v. Adams, 33 Mich. 159; Scorpion S. M. Co. r. Marsano, 10 Nev. 370. Ог for failure to receive by mail, Bank of N. Am. v. Norwich Sav. Soc. 37 Conn. 444; Lewis v. Lewis, 15 Kans. 181, 193. Or for failure to properly direct mailing. Eleventh Ward Bank v. Powers, 43 App. Div. 178, 59 N. Y. Supp. 314; Ver Planck v. Godfrey, 31 Misc. 54, 64 N. Y. Supp. 545; aff'd, 49 App. Div. 648.

As to service by party, see Myers v. Overton, 2 Abb. Pr. 344; less fully, 4 E. D. Smith, 428; Hunter v. Lester, 10 Abb. Pr. 260, 18 How. Pr. 347.

As to service by wrong officer, Beard v. Smith, 9 Iowa, 50; Sawyer v. Price, 6 Ala. 285; Gage r. Graffam, 11 Mass. 181; Minott v. Vineyard, 11 Iowa, 90. As to setting aside for service in violation of privilege of witnesses, see Person v. Grier, 66 N. Y. 124, 23 Am. R. 35 (non-resident; explained and followed in Grafton v. Weeks, 7 Daly, 523); Blair v. Turtle, 1 McCrary, 372; Frisbie . Young, 11 Hun, 474 (resident witness); Miner v. Markham, 28 Fed. Rep. 387 (violation of privilege of member of Congress); Matthews r. Tufts, 87 N. Y. 568 (parties); Parker v. Marco, 136 N. Y. 585. See also Nichols r. Horton, 14 Fed. Rep. 329; Hale r. Wharton, 73 Fed. Rep. 738; Larned t. Griffin, 21 Am. L. Reg. 675; Atchison v. Morris, 11 Biss. C. Ct. 191. As to service on corporation by delivery to one not proper officer or agent, see Eisenhoefer v. New Yorker Zeitung Pub. Co., 91 App. Div. 94, 86 N. Y. Supp. 438; Am. Bell. Tel. Co. v. Pan Electric Tel. Co., 28 Fed. Rep. 625; Romaine v. Union Ins. Co., Id.; Berrian v. Meth. Soc., 4 Abb. Pr. 424 (mere de jure and not de facto officer); Swift r. Globe Varnish Co., N. Y. Daily Reg., May 14, 1883 (service on officer who was himself the assignor of the claim sued on); Hetzel t. Tannehill Mining Co., 4 Abb. N. C. 40 (service

6. Service of wrong person; misnomer.] If the right person is served as defendant, but is misnamed in the summons, his remedy to secure being correctly named, is to appear in his true name and secure amendment, or to appear specially and move to set aside the summons, etc., for misnomer, in which case the plaintiff will usually be allowed to amend.

66

If the summons is served on the wrong person, even though of the same or similar name to the intended defendant, his most complete and direct remedy is to appear in a form of appearance indicating that the summons has been served on the wrong individual; and, if no attention is paid to this, to formally answer the complaint when served, notice the case for trial, and if plaintiff refuses to remedy the mistake by withdrawing the summons or consenting that its service be set aside, the action may be brought to trial and dismissed. There is also authority for the practice of moving to set aside the service, on the ground that a mistake has been made in the person served; but where this is resorted to, the person runs the risk of having plaintiff insist that the service was upon the right individual, although the name was incorrectly stated in the summons, in which event it is the duty of the court to deny the motion to set aside service.67

If the person served is in doubt whether he is the intended defendant or not, the question whether it is necessary for him to appear in order to avoid judgment apparently against him, is a question for the court, and will usually depend upon whether the names were so similar that under the circumstances he was justified in applying to the court.68

after dissolution); Donadi v. N. Y. State Mut. Ins. Co., 2 E. D. Smith, 519; Persons v. Buffalo City Mills, 29 App. Div. 45, 51 N. Y. Supp. 645 (duty of corporation moving to disclose facts).

As to service by decoying into the jurisdiction, see Olean St. Ry. Co. v. Fairmont Const. Co., 55 App. Div. 292, 8 Anno. Cas. 404; Beacom v. Rogers, 79 Hun, 220, 29 N. Y. Supp. 507; Higgins v. Dewey, 27 Abb. N. C. 81. 34 St. Rep. 692; Baker r. Wales, 14 Abb. Pr. (N. S.) 331; Steiger v. Bonn, 4 Fed. Rep. 17. 5 Wkly. Cin. Bul. 729, and cases cited; Cavanagh v. Manh. Transit Co., 133 Fed. Rep. 818; Hevener v. Heist, 9 Phil. 274. Or bringing on by extradition. Adriance . Lagrave, 59 N. Y. 110; Slade v. Joseph, 5 Daly, 187. As to service by delivering sealed package, see Bulkley v. Bulkley, 6 Abb. Pr. 307. As to violence in entering to serve, Mason v. Libbey, 1 Abb. N. C. 354.

66 Otherwise of a corporation.

N. Y. Code Civ. Pro., § 1777.

67 Lederer Amusement Co. t. Pollard, 71 App. Div. 35, 75 N. Y. Supp. 619, 10 Anno. Cas. 481: City of New York v. Ackerman, 51 Misc. 424.

68 That a defendant, by his own representations inducing service, may be estopped from objecting that he was not the proper person to be served, see Finnegan v. Carraher, 47 N. Y. 493.

7. Collateral attack.] In a collateral attack, the proceedings should be upheld unless absolutely void for jurisdictional defects."

FORM No. 445.

Notice of motion to vacate order for service by publication, for insufficiency of papers or defect in order.

[Title of court and cause.]

Please take notice that upon the hereinafter described order, and the papers upon which the same was granted, the undersigned will move this court, at a Special Term, [Part I.] thereof, to be held at the County Court House, in the [Borough of Manhattan, in the City of New York], on the day of

19 at 10.30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order vacating the order herein dated the day of 19 made by Mr. Justice

and directing service of the summons herein by publication upon the defendants M. A. G., [individually and as trustee for L. A. G.], and L. A. G.; that the grounds"1 upon which this motion is made are (1) that the said order is defective in not specifying the post-office in which the copies of the summons, complaint and order were to be deposited, and (2) that the certificate and affidavits presented to the justice do not show that the plaintiff has been, or will be unable, with due diligence, to make personal service of the summons herein.

[Date.]

[Signature.]

Appearing specially for the purpose of this motion on behalf of defendants M. A. G., [individually and as trustee], and L. A. G.

[Office and post-office address.]

As to errors in names of defendants, see Dole v. Manley, 11 How. Pr. 138 (holding that since under the Code misnomer is not pleadable in abatement, the remedy is to move before appearing, and that it is waived by appearing generally).

Denman v. McGuire, 101 N. Y. 161, 164.

70 Where the order was regularly obtained, but subsequent statutory requirements have been violated, the motion should be to set aside the proceedings under the order. Whiton v. Morning Journal Asso. 23 Misc. 299,

50 N. Y. Supp. 899, 27 Civ. Pro. Rep. 224 (failure to file papers on or before day of first publication).

71 It is not essential to specify the grounds. See note 72 to next Form.

FORM No. 446.

Formal affidavit to obtain order to show cause why order for service by publication should not be set aside.

[Title of court and cause.]

[Venue.]

Z. T., being duly sworn, says: I. That he is counsel [or, the managing clerk for W. T., who is counsel] for the defendant Y. Z herein, for the purpose only of moving to set aside the order for service of the summons herein by publication [or, without the State] upon the said Y. Z., dated the day of 19,

and filed on the

73

day of

19 72

II. [State condition of cause; and add reason for asking order to show cause, for instance thus:] That deponent desires an order to show cause for this purpose, returnable in less than eight days, in order that there may be time for hearing and decision thereupon before the 19, which is defendant's last day to appear and plead herein if the said order be sustained.

day of

III. That no previous application for an order to show cause why said proceedings should not be set aside has been made herein [except, etc.].

[Jurat.]

FORM No. 447.

[Signature.]

Order to show cause why order of publication should not be set aside.75 [Name of] Court [or if court order], At a Special Term, [etc.

[Title of cause.]

See p. 255.]

day of

On the annexed affidavit of Z. T., verified the 19, let the plaintiff or his attorneys show cause

72 It is doubtful whether any attack upon an order for service by publication would be considered founded upon an irregularity within Rule 37 of the General Rules of Practice, requiring the irregularity to be specified in the notice of motion or order to show cause. If the papers were insufficient to confer jurisdiction upon the court, or the order is not in strict compliance with the code requirements, the service will not be effective, and a fortiori the motion to vacate based upon such objections raises more than a question of regularity. See Wilson

v. Lange, 40 Misc. 676, 83 N. Y. Supp. 180; Whiton v. Morning Journal Asso. 23 Misc. 299, 50 N. Y. Supp. 899; also, article on SERVICE BY PUBLICATION, supra.

73 See Gen. Rule No. 37.

74 See p. 116, paragraph 84, and p. 171 of this volume.

75 The judge who grants an order of publication can entertain an ex parte application to vacate or modity it. McCarthy v. McCarthy, 13 Hun. 579. See pp. 91-93, paragraph 33, of this volume.