CHAPTER VII. PUBLICATION OF NOTICES. I. ORIGINAL PROCESS. II. JUDICIAL SALES. III. NON-JUDICIAL INVOLUNTARY SALES. I. ORIGINAL PROCESS. § 1029. General Character of Service by Publication. 1030. Must Conform to Statute. 1031. Suits in which Generally Employed. 1032. Affidavit or Declaration. 1033. Must Aver Jurisdictional Facts. 1034. Should Allege Property within State. 1035. Must Aver Cause of Action. 1036. Ground of Attachment. 1037. Attachment of Property. 1038. Requisites of Affidavit in New York. 1039. Example of Sufficient Affidavit in California. 1040. Averment of "Due Diligence " Held Sufficient. 1041. Difference in Statutes. 1042. Conclusions of Law not to be Stated. 1043. Expression of Opinion not Sufficient. 1044. Information and Belief. 1045. Sufficient Statement of Absence from State. 1052. Who to Make the Order. 1053. Must be by Designated Officer. 1054. Change of Order without Authority. 1055. Contents of the Order. 1056. Sufficient Recitals to Inform Defendant. 1060. Names of Defendants. 1061. Unnecessary to Designate Statute. 1062. Order Must be Properly Signed. 1063. Should State Return Day. 1064, Publication. 1065. Newspaper. 1066. What is Newspaper? 1067. Published in Designated Paper. 1068. Substitute for Publication in Paper. 1069. Full Time. 1070. Computation of Time. 1071. Three Calendar Months. 1072. Three Weeks Successively. 1073. Last Insertion Four Weeks Prior to Term. 1074. Six Weeks' Publication. 1075. When Time Cannot be Shortened. 1076. Days, Weeks, or Months. 1077. Certain Time, or Certain Number of Times. 1078. Ten Publications in Ten Weeks. 1079. Two Weeks in Daily Paper. 1030. Proof of Publication. 1031. To Satisfaction of Court. 1082. Affidavit not Conclusive. 1093. Divorce and Alimony. 1084. Judgment Binds Property. 1085. Judgment not Subject to Collateral Attack. § 1029. General Character of Service by Publication. Publication is a means authorized by statute in most if not all the states of the Union, for obtaining constructive service of process, when from the non-residence, absence from the state, or absconding of the defendant, a more direct mode of service becomes impracticable. Service of summons in this manner is called constructive, not because the publication in the manner prescribed by statute raises any reasonable presumption that thereby the defendant is advised of the pendency of the suit, for its authorization is not confined to cases where there is even a possibility of its ever coming to the knowledge of the party to be affected. The defendant may have removed so far beyond the confines of civilization that it would be impossible in the nature of things for the paper containing the first insertion of the notice to reach him before the return day, and it will still be as effective as though the paper came regularly to his hands. § 1030. Must Conform to Statute. As this manner of serving process, depends for its validity, more upon its strict conformity to the statute by which it is authorized, than upon any inherent probability of its conveying intelligence of the impending suit, to the party whose rights are to be affected, the fact that it has actually come to the knowledge of defendant, cannot be shown to supply any material deviation in the publication, from what the statute prescribes. The statute being in derogation of common law, is always strictly construed, and it must be shown affirmatively that its provisions have been complied with.1 §1031. Suits in which Generally Employed. Parties may be effectually served by publication, in general, where the suit is brought by attachment, or to foreclose a mortgage or deed of trust, or otherwise to directly affect the title to property within the jurisdiction of the court. This manner of service is also extensively used in suits for divorce.3 §1032. Affidavit or Declaration. The first essential requisite to a valid publication of original process, is the affidavit, return, or declaration upon which the order is based. The allegations should be distinct and unequivocal, and should show the existence of a state of facts such as would give the court or judge jurisdiction to order the publication." 1 Scorpion S. M. Co. v. Marsano, 10 Nev., 370; Likens v. McCormick 39 Wis., 313. People v. Huber, 20 Cal., §1; Cook v. Farren, 34 Barb., 95; Lawrence v. State, 30 Ark., 719; Gray v. Larrimore, 2 Abb. U. S., 542; Sexton v. Rhames, 13 Wis., 99; Lovejoy v. Lunt, 48 Me., 377; Zacharie v. Bowers, 3 Sm. & M., 641; Bobb v. Woodward, 42 Mo., 482. 3 Jarvis v. Barrett, 14 Wis., 591; Pomeroy v. Betts, 31 Mo., 419; Wilson v. Ladd, 49 Me., 73. 4 Bardsley v. Hines, 33 Ia., 157; Merrill v. Montgomery, 25 Mich., 73; Schell. Leland, 45 Mo, 289. $1033. Must aver Jurisdictional Facts. It was accordingly held in Eastbrook v. Eastbrook, that the affidavit should aver diligence in endeavoring to find the party to be served within the jurisdiction, and that the court could not be satisfied of the existence of the necessary jurisdictional facts, by the certificate of the sheriff that he had reason to believe that the defendant was a non-resident, or was beyond the jurisdiction of the court. $1034. Should Allege Property within State. So, where the affidavit stated that the defendant was a non-resident of the state, but failed to allege that he had property within the state, it was held insufficient to authorize the order of publication." $1035. Must Aver Cause of Action. So, also, has it been held that the affidavit should show by a sufficient statement of facts, the existence of a cause of action in favor of plaintiff and against defendant, and also the nature of such cause of action.3 §1036. Ground of Attachment. Where the suit was brought by attachment, the affidavit was required to state in addition to the nature of the cause of action between the parties, the nonresidence, departure from state, concealment to avoid summons, or some one or more of the different grounds for attachment, and a failure in this respect, it was held, would render the judgment in pursuance of such service, utterly void." $1037. Attachment of Property. So, where the affidavit failed to allege that the property of the defendant had -been attached in the suit, the defect was considered fatal to the judgment, as this was a fact necessary to the jurisdiction of the court.5 $1038. Requisites of Affidavit in New York. The essential requisites of the affidavit for an order of publication under the 164 Barb., 421. See, also, Waffle v. Goble, 53 Barb., 517. 2 Spiers v. Halstead, 71 N. C., 209. 4 Braley v. Seaman, 30 Cal., 610; Riley v. Nichols, 1 Heisk. (Tenn.), 16. Drake v. Hale, 38 Mo., 346: Riley v. Nichols, 1 Heisk. (Tenn.), 16. But, see, Dronillard v. Whistler, 29 Ind., 552; where it is held that the affidavit need not mention the attachment. laws of the State of New York, as laid down in Bixby v. Smith,' are: 1. That defendant cannot after due diligence be found in the state. 2. That a cause of action exists in favor of plaintiff and against such defendant, or that defendant is a proper party to an action relating to property within the state. 3. That defendant is a non-resident of the state. And where the affidavit upon which the order was made averred diligence on his part and proper efforts to find defendant, but that he could not be found in the state, this was held a sufficient statement as to the non-residence of the defendant, to warrant the issuing of the order of publication.2 In a case § 1039. Example of Sufficient Affidavit in California. arising under the California Statute, it was held where the affidavit stated that defendant had absented himself from his place of abode on the day before the commencement of the suit, informing his servant that he would return on the following day; that he could not be found by the officer who made diligent search for him, and affiant believed that defendant concealed himself for the purpose of avoiding summons; and that the claim sued on was a just debt, that this was sufficient to justify the order. 8 $1040. Averment of Due Diligence "Held Sufficient.” Where the affidavit stated that the defendant could not "with due diligence, be found within the state," it was held not defective for failing to allege with particularity, what efforts had been made to find defendant within the state.4 $1041. Difference in Statutes. The statutes of the different states vary materially with respect to the affidavit. In some of them the allegation of non-residence is not sufficient without the further statement that the defendant could not be found within the state," while in others it seems sufficient to state that defendant is not a resident of the state." 149 How. Pr., 50; S. C., 5 Thompson & C., 279 Simpson v. Burch, 6 Thomp. & C. (N. Y.), 560; S. C., 4 Hun., 315. 3 Seaver D. Fitzgerald, 23 Cal., 85. Sueterlee v. Sir, 25 Wis., 357. Mackubin v. Smith, 5 Minn., 367. 6 Byrne v. Roberts, 31 Ia., 319; Dronillard v. Whistler, 29 Ind., 552. |