ability with due diligence to make personal service." Nonresidence in the State, or residence at any particular place, may be stated directly as a fact.75

7. hearsay.] This principle, however, does not preclude statements on information and belief, for the facts of nonresidence, absence, concealment, and the like, are in their nature chiefly provable by evidence of declarations of the absentee, and declarations of third persons made in answer to proper inquiries for information; and the same principle that allows such evidence on a trial at law allows it in these affidavits.76

It is not necessary to produce the affidavits of the informants or excuse their nonproduction."

The allegations of the affidavit need not make a case of absolute inability to serve, but must make it clear that reasonable diligence in good faith has left or will leave plaintiff still unable to effect personal service.

In addition to such facts and circumstances, the affidavit should allege the resulting conclusion, i. e., that plaintiff cannot serve the summons personally in the State with due diligence.78

to.

8. Sources of information.] It is material to show that the sources of information were such as inquiry ought to be directed Thus an allegation of inquiry of a third person, which would not be sufficient, if for aught that appeared, he was a perfect stranger, may be made sufficient by adding that he was the brother, or the partner, or general agent of the defendant. But inquiry

79

74 N. Y. Code Civ. Pro., § 439; Kennedy v. Lamb, 182 N. Y. 228.

75 Recital in an affidavit that a warrant of attachment has been granted upon the ground of defendants' non-residence does not establish such fact. Young v. Fowler, 73 Hun, 179, 25 N. Y. Supp. 875.

76 See, for instance, Howe Mach. Co. v. Pettibone, 74 N. Y. 68; Belmont v. Cornen, 82 N. Y. 256; Empire City Sav. Bank r. Silleck, 98 App. Div. 139, 90 N. Y. Supp. 561, aff'd, 180 N. Y. 541; Coffin v. Lesster, 36 Hun, 347; Wunnenberg . Gearty, Id. 243; Lockwood v. Brantly, 31 id. 155.

77 Seiler v. Wilson, 43 Hun. 629, 12 Civ. Pro. Rep. 267; Nat. Bank of Commerce r. Whiteman, 21 N. Y. Supp. 748.

78 Empire City Sav. Bank r. Silleck, 98 App. Div. 139, 90 N. Y. Supp. 561, aff'd, 180 N. Y. 541.

79 A general statement of having made search and inquiry at all the places where defendant would be most likely to be found is not sufficient. Putnam v. Griffin, 19 Wkly. Dig. 46.

A reference in the affidavit to letters as the source of information must be supported by producing the letters, or copies annexed, sworn to be copies. Orr v. Currie, 14 Misc. 74, 35 N. Y. Supp. 198; Greenbaum v. Dwyer, 66 How. Pr. 266, 4 Civ. Pro. (Browne) 276.

of only one person is rarely enough, and the inquiry should be pursued down to the time of making the affidavit.80

9. What positive allegation may suffice to give jurisdiction.] If non-residence within the State, actual residence at a specified place in a distant State, and continued presence in that distant State, be positively alleged in an affidavit made at the time of the application, the court have jurisdiction to act without further evidence; and the omission of the usual formal allegation that defendant cannot be served within the State is immaterial.81

But as the judge should refuse the order unless satisfied of inability to serve within the State unless the affidavit shows actual knowledge on deponent's part of defendant's nonresidence and absence, the moving papers must show that proper sources of information and grounds of belief exist.

A general allegation that the defendant cannot be served within the State is not enough, but must be supported by some evidence of absence, or at least by information, the source of which is stated.82

In case of divorce, special scrutiny of the affidavits, and special caution in acting on evidence of inability to serve which in other actions might be sufficient, is proper; and, therefore, special caution is useful in making adequate efforts to serve and full allegations of the grounds of inability.

83

The

10. Who to make affidavit.] In so far as statute makes the application depend on a fact being "unknown to the plaintiff," the plaintiff's own affidavit is the appropriate evidence. rule that no other affidavit than his will do does not rest on soundprinciples, and such a restriction, though sometimes proper as a requirement of proof, is not to be pressed too far. If the plaintiff is a corporation, the affidavit may be made by an officer; and in

85

80 Empire City Sav. Bank r. Silleck, 98 App. Div. 139, 90 N. Y. Supp. 561, aff'd, 180 N. Y. 541.

81 Kennedy v. N. Y. Life Ins. & Trust Co., 101 N. Y. 487; Crouter r. Crouter 133 N. Y. 55; distinguished in Kennedy t. Lamb, 182 N. Y. 228.

82 Carleton v. Carleton, 85 N. Y. 313; Kennedy v. Lamb, 182 N. Y. 228. 83 See N. Y. Code Civ. Pro.. § 438, subd. 1. and see § 439, last clause.

84 Piser r. Lockwood, 30 Hun, 6 (holding that under a somewhat similar clause in Code Civ. Pro., § 135, not made by plaintiff nor stating the reason why not, was insufficient).

85 The same statute, two sections earlier (§ 435), forbids the affidavit of substituted service within the jurisdiction to be made by a party to the action.

any case an affidavit by the attorney or any other person, showing a greater conversance with the matters in question than the plaintiff, is to be accepted here as well as in the analogous case of affidavits to obtain attachment, without laying too much stress on the mention of the plaintiff in the statute, if his affidavit cannot be had.

As the plaintiff is disqualified to make personal service, his affidavit to efforts to serve will rarely be appropriate; and in the absence of any express requirement of statute that the plaintiff make affidavit, the general principle that the client's affidavit should be used to support a motion or excuse given does not apply to these applications, except so far as it may sometimes be necessary for the purpose of showing his ignorance of a defendant alleged to be unknown.

86

87

11. Second use.] — The same affidavit can be used in obtaining an order for publication and an attachment, but in such case it is better to refer to and adopt it in one of the other affidavits on the second use. 88

12. Return.] The statute requiring proof by affidavit, a returm is not available in place of an affidavit.89 But a return of inability to make personal service, stating the reasons, is available in support of an application made on affidavit.90

A return of not found is not enough to show effort and inability to serve.91

13. Promptness.] - The principle already indicated in reference to substituted service, requiring promptness in applying after the affidavits have been made, and in proceeding upon the order after it is granted,92 applies here also, although a longer period

86 Weaver v. Roberts, 84 N. C. 493.

87 Bray v. Marshall, 75 Mo. 327.

93

88 S. P., Brien v. Casey, 2 Abb. Pr. 416 (sheriff's certificate).

89 Spiers v. Halstead, 71 N. C. 209.

90 Schroeder r. Lear, 17 Wkly. Dig. 574.

91 Victor M. M. Co. r. Justice Court, 18 Nev. 21, 1 West Coast Rep. 299 ; Palmer v. Cowdrey, 2 Colo. 1. 6, followed in Vance's Heirs v. Maroney, 4 id. 47; Clayton r. Clayton, Id. 410.

92 Page 654 of this volume.

93 Forbes v. Hyde, 31 Cal. 342 (order made four months after affidavits, insufficient to sustain jurisdiction, because “founded on affidavits which were

is allowed for the commencement of publication under the order than in case of delivery at residence within the jurisdiction. But no evasion of the statutory limit of time is to be allowed.

14. Taking advantage of defects.] - Under the usual statutory provision requiring, for an order of publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, a mere inadequacy in evidence otherwise legal can be taken advantage of only on appeal or by some other direct proceeding to open or set aside the proceedings, and cannot be urged to impeach the judgment in a collateral action.95

The method of proceeding for relief is considered in the next chapter in connection with defendant's proceedings relating to jurisdiction.

15. Amendment.] The affidavit and the order, and the performance of its requirement, are jurisdictional,96 and if there be a substantial defect not cured by appearance, amendment,which the court have power to allow even after judgment, if the judgment be valid as against other persons,- must generally be by fresh service, either personal or by a new application for service by publication, etc., and by allowing the regular time to answer, and finally entering judgment nunc pro tunc. An order may be corrected nunc pro tunc to meet a statutory requirement which was in fact complied with.97 Formal defects may be amended by the court without fresh service."

99

98

The proof of the performance of the requirement of the order is not strictly jurisdictional, and though a substantial defect may vitiate the judgment by raising a presumption that there was

not applicable to the facts existing at the time the order was made. The statute contemplates immediate action on the affidavit."

But in Kane t. McCown, 55 Mo. 181, and Johnson v. Gage, 57 id. 160, using an old affidavit was held not available to avoid the judgment on collateral attack.

94 People v. Huber, 20 Cal. 81 (reversing judgment for four days' variance). 95 Pennoyer t. Neff, 95 U. S. 714. 96 This is not a universal rule.

See Matthews v. Blossom, 15 Me. 400 (summons served in the mode an attachment only could be served, allowed to be amended into an attachment to defeat motion to dismiss).

97 Mishkind, etc., Realty Co. v. Sidorsky, 111 App. Div. 578. 98 N. Y. Supp. 496 (directing service of notice of object of action, instead of complaint, but complaint actually served).

98 Mojarrieta r. Saenz, 80 N. Y. 553 (amending order by striking out court caption, allowed).

Richards v. Ladd (U. S. C. Ct., Oreg., 1879), 8 Repr. 518 (sheriff allowed to amend return, nunc pro tunc, without notice). And see RETURNS, p. 366, of this volume.

no legal service, the defect is amendable nunc pro tune by filing proper proof by leave of court without serving anew.1

S. P., Spellmyer v. Gaff, 112 Ill. 29, 1 Northeast. Rep. 171.

Lyons . Donges, 1 Disn. (Ohio) 142 (return amended to state true name of person served).

Mann v. Martin, 7 Repr. 780, 14 Bush, 763 (omission of order to designate paper, disregarded after due publication).