In case of personal service. - When a provisional remedy is allowed.

twenty days thereafter. Brod v. Heymann, 3 Abb. N. S. 396; Richardson v. Bates, 23 How. 516; Abrahams v. Mitchell, 8 Abb. 123; Tomlinson v. Van Vechten, 1 Code R. N. S. 317; S. C., 6 How. 199.

Section 2. In case of personal service. Personal service, if made within the State, is complete at the time of the delivery of a copy of the summons to the party served. This rule does not, however, apply to personal service out of the State. By the language of section 135 of the Code, personal service out of the State is made, not a substitute for personal service within the State, but an equivalent to publication and deposit in the postoffice. It can have no greater effect than such service, and must be subject to the same restrictions. Judgment cannot, in any case, under an order for publication, be taken by default before the expiration of the full time for publication, and of the full twenty days within which the defendant is allowed to appear and answer. Richardson v. Bates, 23 How. 516; Downer v. Mellen, 50 Barb. 232; Abrahams v. Mitchell, 8 Abb. 123; Tomlinson v. Van Vechten, 1 Code R. N. S. 317; S. C., 6 How. 199. This time should be computed by excluding the first day and including the full period which is required thereafter. Brod v. Heymann, 3 Abb. N. S. 396; Code, § 425.

Section 3. When a provisional remedy is allowed. The allowance of a provisional remedy in no way affects or dispenses with the service of a summons. The Code provides that certain provisional remedies may be allowed and become effectual, in case a summons shall be served within a specified time thereafter. § 227. On the completion of the service of the summons, the remedy hitherto conditional becomes absolute, and an action is commenced. The summons must, however, invariably be served before the action can be carried to a final determination. O'Hara v. Brophy, 24 How. 379; Waffle v. Goble, 35 id. 356; S. C., 53 Barb. 517.

Section 4. By voluntary appearance. If, after the issuing of a summons for the commencement of an action, the defendant voluntarily appears generally, the service of the summons may be deemed complete. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him. Code, $139; Higgins v. Rockwell, 2 Duer, 650; Wellington v. Classons, 18 How. 10; S. C., 9 Abb. 175. See Supreme Court, Rule

14.

Irregular, defective or fraudulent service.

ARTICLE VIII.

IRREGULAR, DEFECTIVE OR FRAUDULENT SERVICE.

Section 1. What is such service. The court, upon a proper application, will generally, if not always, interfere to correct the irregular, defective or fraudulent service of process or papers in the course of an action. When such acts are merely irregularities, and when they are nullities, will be fully explained in a subsequent place. What constitutes a fraudulent service of process has been noticed, ante, 509 to 511.

The service of a summons by a party to the action is impliedly forbidden by section 133 of the Code, and such service is an irregularity. Myers v. Overton, 2 Abb. 344; S. C., 4 E. D. Smith, 428; Hunter v. Lester, 18 How. 347; S. C., 10 Abb. 260. So the service of a summons on the Sabbath, being contrary to a statute, is utterly void. Hastings v. Farmer, 4 N. Y. (4 Comst.) 293. Defective service includes both irregular and void service. It may result from a failure to comply with the letter of the statute, or from an intentional violation of both its letter and its spirit.

Fraudulent service on the other hand is a service which may be in form within the letter of the statute or the rules of law, and yet be in violation of the spirit and intent, and with the preconceived design of evading such legal provisions. Thus, where a party is induced to come within the jurisdiction of the court by false and fraudulent representations, for the sole purpose of effecting the service of a summons upon him, such service is in every respect fraudulent, although the wrongful act of service is in the usual mode. Carpenter v. Spooner, 2 Sandf. 717; S. C., 2 Code R. 140; Metcalf v. Clark, 41 Barb. 45. Such service is not, however, absolutely void, as the court will acquire jurisdiction by the service of the summons, unless the defendant resorts to his motion to set aside the summons. By a void service of process a court can acquire no jurisdiction of the person of the defendant, and consequently he cannot be divested of his property or rights by any proceedings thereunder. Meeks v. Noxon, 1 Abb. 280; S. C., 11 How. 189. Such service can never be cured by amendment. Hallett v. Righters, 13 How. 43. See post, 541.

Remedy of injured party-Proof of service.

Section 2. Remedy of injured party. A defendant cannot raise an objection to the improper service of a summons by demurrer or answer. His remedy is by motion to have the service of the summons and all subsequent proceedings set aside. Nones v. Hope Mutual Life Insurance Company, 5 How. 96; S. C., 3 Code R. 161; 8 Barb. 541. The motion to set aside the summons is proper, strictly speaking, only when the defect is in the summons itself and not in the service. Metcalf v. Clark, 41 Barb. 45. See Van Wezel v. Van Wezel, 1 Edw. Ch. 113; Petrie v. Fitzgerald, 1 Daly, 401. When the objection is technical, and affects only the regularity of the service, as where service has been made by a party to the action, this motion should be made at the earliest opportunity. And as a general rule all motions for relief on the ground of irregularity must be made before judgment. Myres v. Overton, 2 Abb. 344; S. C., 4 E. D. Smith, 428; Hunter v. Lester, 10 Abb. 260; S. C., 18 How. 347. But where the defect is one of substance, and deprives the court of jurisdiction, no delay on the part of the defendant to object to such defect will deprive him of his right to have the service of the summons and all subsequent proceedings set aside as void. Titus v. Relyea, 8 Abb. 177; S. C., 16. How. 373; Williams v. Van Valkenberg, id. 144; Hallett v. Righters, 13 id. 43. So where there has been a fraudulent service, as by enticing the defendant to come within the jurisdiction of the court, for the purpose of making service upon him, or where there has been a pretended service, as by serving a summons in a disguised form, the service may be set aside. Metcalf v. Clark, 41 Barb. 45; Goupil v. Simonson, 3 Abb. 474; Bulkley v. Bulkley, 6 id. 307; Carpenter v. Spooner, 2 Sandf. 717; S. C., 2 Code R. 140; Benninghoff v. Oswell, 37 How. 235. And, if the defects are such as to deprive the court of jurisdiction, the motion may be made after judgment, although the action was for divorce, and a decree had been obtained. Bulkley v. Bulkley, 6 Abb. 307.

ARTICLE IX.

PROOF OF SERVICE.

Section 1. By sheriff's certificate. Proof of the service of a summons may be made either by the certificate of the sheriff, by affidavit, or by admission.

Proof of By sheriff's certificate.

The sufficiency of the evidence of a sheriff's certificate, as a proof of the service of a summons, depends upon the capacity in which such service was made. A sheriff can act in an official character only within the limits of the county in which he was elected, and all acts performed by him beyond such territorial limits are the acts of a private person, and must be proved as such. Farmers' Loan & Trust Co. v. Dickson, 17 How. 477; S. C., 9 Abb. 61; Thurston v. King, 1 id. 126; Morrell v. Kimball, 4 id. 352.

But the certificate of a sheriff of the service of a summons within his own county is conclusive evidence of the fact of such service, as against all persons but the defendant. Brien v. Casey, 2 Abb. 416; Columbus Insurance Co. v. Force, 8 How. 353. It may, however, be impeached by the defendant, and when so assailed must be sustained by affidavit. Van Rensselaer v. Chadwick, 7 How. 297; Wallis v. Lott, 15 id. 567; Sperling v. Levy, 1 Daly, 95. The return of a deputy is, in legal effect, the return of the sheriff, when made in the name of that officer, and is equally as valid as evidence. But the return ought to be in the name of the sheriff, and not in that of the deputy, as deputy. Simonds v. Catlin, 2 Caines, 61; Joice v. Joice, 5 Cal. 449.

A sheriff's return does not lose its validity by lapse of time, or by having once been used as evidence. Brien v. Casey, 2 Abb. 416; Columbus Ins. Co. v. Force, 8 How. 353. The certificate should in some manner identify the summons served, either by indorsement upon it, by referring to it as annexed, or by stating the title of the cause in which such service was made. Board v. Board, 4 Abb. 295, 305; Litchfield v. Burwell, 5 How. 341; S. C., 1 Code R. N. S. 42; 9 N. Y. Leg. Obs. 182. The time and place of service should also form a part of the certificate. Code, § 138.

In general, a sheriff's certificate is valid and conclusive in all matters where such return is required by law, but no further; and, for this reason, an indorsement on a summons setting forth the time of its receipt is not evidence of the time of the commencement of an action under section 99 of the Code. Wardwell v. Patrick, 1 Bosw. 406; Utica City Bank v. Buel, 9 Abb. 385; S. C., 17 How. 498, ante, 484, 485.

Sheriff's certificate of service on defendant personally- By affidavit.

named, the (within) summons (and complaint) in this action, by delivering a copy thereof to him personally, and leaving the same with him.

(Date.)

OLIVER GETMAN, Sheriff of Fulton Co., N. Y.

Section 2. By affidavit. Where the service of a summons has been made by any person other than a sheriff, the fact must be shown by the affidavit of the person making the service, or by the written admission of the party served. This rule also applies to a service made by a sheriff out of his county, or the act of any officer authorized to serve process, when acting in an extra official capacity. Van Rensselaer v. Chadwick, 7 How. 297; Wallis v. Lott, 15 id. 567.

The requisites of an affidavit of service have been established by the Code, and the rules of the supreme court.

The Code requires that, except where service has been made by publication, the affidavit must state the time and place of service. Code, § 138.

The rules of the court require additional proof, not only of the manner of service, but of the capacity of the person subscribing the affidavit to make a valid service.

"Where the service of the summons, and of the complaint or notice, if any, accompanying the same, shall be made by any other person than the sheriff, it shall be necessary for such person to state in his affidavit of service, the age of the person making the service (if under age), when and at what particular place he served the same, and that he knew the person served to be the person mentioned and described in the summons as defendant therein; and also to state in his affidavit that he left with the defendant such copy, as well as delivered it to him." Rule 23, Supreme Court. The clause of such a rule requiring the affidavit to state when and in what particular place the service was made has been held to be satisfied, by a statement that the service was made in a specified county of the State. Lewis v. Hartel, 24 Wis. 504; Sayles v. Davis, 20 id. 302.