100 A. M. CUNNING, ATTORNEY, BLOOMINGTON, INDIANA. PRACTICE. [PART II, CH. II. fourth class of cases where publication may be made is, in actions for divorce, where by the statute the same must be brought in the county where the plaintiff resides,' and where it appears by affidavit of a disinterested person, that the defendant is a non-resident, notice may be given by publication. $23. Affidavit in publication. In all cases, before publication can be made, the plaintiff or some one for him must file an affidavit in the court setting forth the ground of application for publication. The section of the code providing for this affidavit is very confused, and it is difficult to tell what its requirements are. But it seems from the language of the section, it ought to show, 1. That the defendant is a non-resident, or has absented or concealed himself, as the case may be, and 2. That the action belongs to one of the classes enumerated, where publication is proper. But upon the theory that the complaint must be already on file, and , that it must show to what class the case belongs, the opinion was formerly maintained that it was sufficient to show the absence, concealment or non-residence of the defendant as the case might be; the other facts already appearing in the record. view received the sanction of the supreme court. notice by publication is not according to the course of the common law, and therefore requires strict compliance with the law to confer jurisdiction, and as the language of the statute seems imperative, it was always safer to follow it, notwithstanding the judicial sanction of the other view. But the supreme court have recently held a strict compliance with the letter of the statute necessary, and that a failure to comply with it renders the proceedings absolutely void. The requirements of the affidavit will be better seen by reference to the form in Part III. This latter But as the $24. Duty of clerk to make publication when affidavit filed. The affidavit must be filed with the clerk of the court, and in vacation it is his duty without any order to make publication of the pendency of the action, by three successive insertions of the notice, in a newspaper published in the county where the suit is brought, if there is one published in the county; otherwise, in a paper in the county 12 R. S. (1876) 328, § 12. 22 R. S. (1876) 49 § 38. 3 Trew v. Gaskill; 10 Ind. 265. Fontaine v. Huston, 58 Ind. 316, overruling Trew v. Gaskill, supra. FM CUNNING, BLOOMINGTON, INDIANA. nearest thereto wherein a paper is published. If the court is in session, there should be an order for publication entered. $25. Summons served outside the state, as good as publication. Where the defendant is a non-resident of the state, the service of a summons upon him personally will have the same effect as publication. Such service may be made by any one, and may be proved by affidavit, stating the service and the personal identity of the defendant.2 $26. In case of nonresidence where the name is unknown, how to proceed. In cases where publication is proper, and where it is necessary to make parties defendant whose names are unknown, and the plaintiff files an affidavit of non-residency, containing the other grounds for publication, with the additional statement showing such want of knowledge of the names of such defendants, proceedings may be had against them without naming them, and the court may make such order respecting the notice and its publication as shall be deemed proper.3 $27. Proper evidence of service of process or notice. In cases where there has been service of process, the evidence of the fact is the sheriff's return. But in cases of publication, there must be proof, which consists usually of an affidavit annexed to a copy of the printed notice, stating that the notice has been published in the proper paper the proper number of times, giving the particnlar dates of such publication and the location of such paper. This affidavit, in all cases where publication of any kind in a newspaper is required by law, may be made by the printer of such paper, or by any person in his employ; a clerk or printer, who knows the fact. These are the expressions of the statute; but if the court should elect to accept the affidavit of any one connected with a newspaper establishment, or even a competent witness who was not one but who knew the fact, there could be no valid objection to the mode of proof in any subsequent step in the case. It will be borne in mind, as will more fully appear hereafter, that the whole theory of proceedings upon publication without personal service or appearance is based upon the right of the state through its 12 R. S. (1876) 50, § 38. * Id. 50-1, § 39. 3 Id. 51, § 40. 42 R. S. (1876) 152-3, § 287. courts to subject property within its jurisdiction to the payment of the debts of the owner, and therefore so far only as a suit and proceedings operate in rem, that is, upon the property itself, the remedy extends. But without service of process proper or appearance, there can be no judgment which will create a personal liability.1 1Pennoyer v. Neff (U. S. S. R.), 5 Otto, 714. CHAPTER III. OF SUBSIDIARY PROCEEDINGS. §1. Attachment under the code, collateral to the main action. 2. Cases where attachment may be had. 3. Attachment may be had in money demand; whether in tort, quære. ! 4. Limitation of the right to have attachment in certain cases. 5. Affidavit in attachment. 6. Undertaking in attachment. 7. Issuance of the order of attachment. 8. No judgment except in certain enumerated cases. 9. Lien, service and return of order. 10. Personal property must first be taken, and if removed, may be taken in another county. 11. Interest of heir or distributee subject to seizure. 12. Modes of releasing attached property. 13. Perishable property may be sold pending the proceedings. 14. Remedy of third party where property is improperly seized. 15. Garnishment-affidavit. 16. From what time garnishee liable. 17. Answer of garnishee. 18. Garnishee refusing to appear may be attached or defaulted. 19. Garnishee arrested in certain cases. 20. No judgment against garnishee unless judgment is rendered against aefendant. 21. Garnishee must see that the court has jurisdiction of the defendant. 22. Garnishee especially interested in seeing that the proceedings are regular, when notice is by publication. 23. Duty of garnishee to litigate where jurisdiction of defendant has not been obtained. 24. Duty of garnishee where his liability is upon commercial paper. 25. In cases where paper is not payable in bank, a different rule prevails. 26. Controversies as to the validity of assignment of the paper of the garnishee, how settled. 27. Judgment against garnishee, when rendered. 28. Other creditors may be admitted to file claims under attachment proceed ing, before final judgment. 29. Complaint of creditor filing under, must show that the same is filed under. 30. Creditor may contest claim of other creditors. 31. When lien attaches to property upon attachment, may levy, and on money in hands of garnishee. 32. Objection to proceedings in attachment or garnishment, when taken. CLAIM AND DELIVERY OF PERSONAL PROPERTY. $33. General principle stated. 34. In what cases the proceedings may be had. 35. Personal goods defined. 36. Action, how prosecuted without the writ of replevin. 37. 38. Affidavit for order of seizure. Order of seizure, when and how issued, and what should contain. 39. Duty of sheriff in the execution of the order. 40. Sheriff may break open house to execute order. 41. Objection to order, how made. 42. Steamboat attachments. INJUNCTIONS AND RESTRAINING ORDERS. 43. Introductory. 44. 45. 46. 47. Definition of injunctions. An injunction before the code-A writ issued out of a court of chancery. The code has not materially changed the class of cases in which injunctions will lie. Enumeration of cases under the code. 48. Mode of procedure in procuring a temporary injunction. 49. Plaintiff seeking temporary injunction must give notice or show emergency. 50. Mode of serving notice of application. 51. An emergency defined. 52. Parties may read affidavits on application for temporary injunction. 53. The rule as to reading affidavits stated. 54. General rules of practice on the hearing of the motion for a temporary order. 55. Practice where the defendant controverts the complaint on the hearing of the motion. 56. Application may be made after appearance by defendant. 57. The hearing of the motion and the entering and service of the order. 58. Consequences of the violation of such an order. 59. Action of the court in cases of violation of the order; may dissolve or modify such an order. 60. The chancery rule, that upon the coming in of the answer, the injunction is dissolved, does not prevail, and the reason. 61. Injunction dissolved in certain cases. 62. Appeal lies from interlocutory order or decree granting or refusing injunction. RECEIVERS. 63. Receivers under the chancery practice. 64. What is a receiver. 65. General rights, powers and duties. 66. Enumeration of cases wherein a receiver may be appointed under the code. 67. Of the mode of applying for a receiver. 68. Who may be a receiver-how appointed and qualified - what his specific duties. 69. Depositing money in court. |