Unknown parties — Affidavit in case of unknown owners.

Van

must be construed to mean within twenty-four hours. Wyck v. Hardy, 39 How. 392. This rule is, however, seldom strictly enforced. See Vernam v. Holbrook, 5 id. 3; Brash v. Wielarsky, 36 id. 253; Woodward v. Stearns, 10 Abb. N. S. 395; Leffingwell v. Chave, 19 How. 54; S. C., 5 Bosw. 703; 10 Abb. 472.

Section 10. Unknown parties. By the amendment of the Code in 1860, the provisions of section 135 were extended to a new class of cases. It was provided by that amendment that in actions for the forclosure of mortgages on real estate, already instituted, or hereafter to be instituted, if any party or parties having any interest in, or lien upon, such mortgaged premises, are unknown to the plaintiff, and the residence of such party or parties cannot, with reasonable diligence, be ascertained by him, and such fact shall be made to appear by affidavit to the court, or a justice thereof, or to the county judge of the county where the trial is, to be had, such court, justice or county judge may grant an order that the summons be served on such unknown parties by publishing the same for six weeks, once in each week successively, in the State paper and in a newspaper printed in the county where the mortgaged premises are situated; and that such publication shall be equivalent to a personal service.

The mailing of a summons and complaint is, from the nature of the case, an impossibility.

Affidavit in case of unknown owners.

(Title of cause.)

(Venue.)

A. B., the plaintiff in the above entitled action, being duly sworn, says:

I. That this action is brought to foreclose a mortgage made on the day of by the above-named defendant, W. J., to this plaintiff, to secure his bond of even date, conditioned for the payment of dollars, on certain real situated in

property in this State, consisting of county of

II. That certain persons, whose names and residence are unknown to this plaintiff, have an interest in (or lien upon) the above-mentioned premises, arising (state the source and nature of such interest or lien.)

III. That deponent has made diligent inquiries to ascertain the names and residences of such persons, having such interest in (or lien upon) the aforesaid premises (state what inquiries

Order in case of unknown owners- Statute to be pursued - Amending proceedings.

have been made), but that such names and residences cannot, upon such diligent inquiry, be ascertained.

(Jurat.)

Order in case of unknown owners.

(Signature.)

(Caption.)

(Title of cause.) It appearing to the satisfaction of the court by the annexed affidavit (and complaint), that this action is brought to foreclose a mortgage upon certain real property in this State, situated in and that there are certain persons who have an interest in (or lien upon) such premises, whose names and residences are unknown, and cannot, with reasonable diligence, be ascertained. On motion of Q. R., plaintiff's counsel:

ORDERED: That the summons herein, a copy of which is hereto annexed, be served on such unknown owners by publication for six weeks, once in each week successively, in the State paper, to wit: the published at Albany, and also in the a newspaper published in the county of mortgaged premises are situated).

(where the

Section 11. Statute to be pursued strictly. In every step of the proceedings from the preparation of the affidavit for the application for the order directing the publication of the summons, to the completion of the service, every requirement of the statute should be carefully observed and strictly complied with. The jurisdiction of the court in cases of substituted service is strictly statutory, and can only be acquired in the mode prescribed by the statute. The omission of any act essential to jurisdiction will be fatal to a subsequent judgment. Cook v. Farren, 34 Barb. 95; S. C., 21 How. 286; 12 Abb. 359; Peck v. Cook, 41 Barb. 549; Hallett v. Righters, 13 How. 43; Wortman v. Wortman, 17 Abb. 66; Morrell v. Kimball, 4 id. 352; Evertson v. Thomas, 5 How. 45; S. C., 3 Code R. 74; Talcott v. Rosenberg, 8 Abb. N. S. 287.

Section 12. Amending proceedings. After the service of the summons is complete, the court may amend whatever is irregular, but cannot amend any of the proceedings tending to confer jurisdiction. Hallett v. Righters, 13 How. 43; Moulton v. de ma Carty, 6 Rob. 470; Talcott v. Rosenberg, 8 Abb. N. S. 287. Thus, where the summons misstates the day of filing the complaint, the error may be amended or disregarded. Jacquerson v. Van Erben, 2 Abb. 315. So, where the summons, as published, is not, in some immaterial point, an exact copy of the original, the

.

Judgment.

irregularity may be amended or disregarded. Van Wyck v. Hardy, 39 How. 392. The same rule applies to every defect not depriving the court of jurisdiction.

Section 13. Judgment. No judgment can be entered in actions for the recovery of money only, when the summons has been served by publication, unless the plaintiff, at the time of making the application for judgment, shall show by affidavit that an attachment has been issued in the action, and levied upon property belonging to the defendant. This affidavit must contain a specific description of the property, and a statement of its value, and must be attached to and filed with the affidavits of publication. Neither can any judgment be entered in such action unless the plaintiff, at the same time, produces and files with the clerk an undertaking for not less than the amount of the judgment, with two sureties to be approved by the court, that the plaintiff will abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense. Rule 34, Supreme Court. The authority of the clerk to enter judgment exists only when the summons has been personally served. Hallett v. Righters, 13 How. 43. The application, in other cases, must be made to the court upon the proof required by section 246 of the Code. Id. This subject will be discussed at length in a subsequent part of the work. See Judgment on Failure to Answer.

A judgment in an action for the recovery of money only, commenced by the service of a summons by publication, can in no event affect any property of the defendant, except such as has been taken by virtue of an attachment regularly issued in the action. Warren v. Tiffany, 17 How. 106; S. C., 9 Abb. 66. It is a judgment in rem, and not in personam, and has no validity whatever out of the State where it is rendered. Force v. Gower, 23 How. 294; Fiske v. Anderson, 33 Barb. 71; S. C., 12 Abb. 8; Kane v. Cook, 8 Cal. 449.

Substituted service - In what cases authorized- Affidavit or return.

ARTICLE IV.

SUBSTITUTED SERVICE.

Section 1. In what cases authorized. The laws of 1853 provide for a statutory equivalent for the personal service of a summons on a defendant residing in this State, whenever it shall satisfactorily appear to any court, or any judge of the supreme court, or any county judge, by the return or affidavit of any sheriff, deputy-sheriff, or constable authorized to serve or execute any process or paper for the commencement or in the prosecution of any action or proceeding, that proper and diligent effort has been made to serve any such process or paper on the defendant in such action, and that he cannot be found, or, if found, avoids or evades such service, so that the same cannot be made personally by proper diligence and effort. Laws of 1853, ch. 511.

By an amendment of this act in 1863, it was provided that none of the provisions of this act shall be deemed applicable to or in anywise relate to officers, soldiers or musicians while actually absent from their town or place of residence, and actually engaged in the army or military service of the United States, nor to any sailor or marine actually absent from his place of residence and actually engaged in the naval service of the United States, except in partition cases or actions, or proceedings where no personal claim is made against such party so employed. Laws of 1863, ch. 212.

The act of 1853 was evidently intended to supply a defect in the statutes, acknowledged in the case of Van Rensselaer v. Dunbar, 4 How. 151. See Foot v. Harris, 2 Abb. 454. It applies only to cases where the defendant cannot be found either in or out of the State, or, where being found, he avoids or evades service. Foot v. Harris, 2 id. 454. It does not apply where the defendant is temporarily absent from the State, without intent to evade personal service, and where his address is known. Collins v. Campfield, 9 How. 519; Jones v. Derby, 1 Abb. 458. See Baker v. Stephens, 10 Abb. N. S. 1.

Section 2. Affidavit or return. The essential facts to establish by affidavit are: (1) That the defendant is a resident of this. State. Collins v. Ryan, 32 Barb. 647. (2) That proper and diligent effort has been made to serve a summons on him without

Affidavit of inability to make personal service.

avail, Baker v. Stephens, 10 Abb. N. S. 1, 27. (3) That he cannot be found either in or out of this State, or, if found, that he evades or avoids personal service. Foot v. Harris, 2 Abb. 454. (4) That he is not an officer, soldier, or musician in the army, or a sailor or marine in the navy of the United States, or if defendant is so employed, that the action is for the partition of real estate, or that no personal claim is made against him. Laws of 1863, ch. 212.

Affidavit of Inability to make Personal Service.

(Title of cause.)

(Venue.)

A. B., being duly sworn, says:

I. That he is (a deputy) sheriff of

county aforesaid. II. That a summons, a copy of which is hereunto annexed, was delivered to him for service upon the defendant, Y. Z. III. That the said Y. Z. resides in this State, to wit, at (state facts showing that he has a residence as alleged).

IV. That the deponent has made diligent and proper efforts to serve the said summons upon the said Y. Z. (stute what efforts have been made), but that the said Y. Z. cannot be found in or out of the State, nor can the deponent ascertain when he will be at home, although he has made diligent inquiry of

but that the said Y. Z. evades or avoids such service by (state concisely how such service is avoided), so that the said summons cannot be served properly by proper and diligent effort. (Jurat.)

(Signature.)

Affidavit that the Defendant is not a Soldier. (Title of cause.)

(Venue.)

C. D., being duly sworn, says:

That he is acquainted with Y. Z., the defendant in this action referred to in the annexed affidavit, and that the said defendant is not an officer, soldier or musician, actually absent from his place of residence, and actually engaged in the army or military service of the United States, nor a sailor or marine actually absent from his place of residence, and actually engaged in the naval service of the United States, but that he is (state defendant's occupation, if he has any).

Affidavit of the Nature of the Action, or of no Personal Claim when Defendant is a Soldier, etc.

(Title and Venue.)

E. F., being duly sworn, says:

I. That he is the attorney of the plaintiff in this action.