the county where the defendant is found, or by his deputy, or by a person specially appointed by him, or appointed by a judge of the court in which the action is brought, or by any white male citizen of the United States over twenty-one years of age, who is competent to be a witness on the trial of the action, except as hereinafter provided; a copy of the complaint, certified by the clerk, shall be served with the summons. When the summons shall be served by the sheriff or his deputy, it shall be returned with the certificate or affidavit of the officer, of its service, and of the service of the copy of the complaint, to the office of the clerk, from which the summons issued. When the summons is served by any other person as before provided, it shall be returned to the office of the clerk from which it issued, with the affidavit of such person of its service, and of the service of a copy of the complaint. If there be more than one defendant in the action, and such defendants reside within three miles of the clerk's office, a copy of the complaint need be served on only one of the defendants.

See Secs. 646, 656.

1. The date of the return of the sheriff is sufficient, if defendant's attorney acccepts service of the summons, and attached no date thereto.-Crane v. Brannan, 3 Cal., 192. 2. The object of a summons is to bring a party into court, and if that object be attained, there can be no injury to him.-Smith v. Curtis, 7 Cal., April T.

3. It is doubtful whether a person served by the wrong name, and who does not answer, can be bound by a judgment taken against him, by substituting the right name without notice.-lb.

4. The objection that a summons at the commencement of a suit is not properly served, is not available in an answer or demurrer, but only on motion to set the proceedings aside.-Nones v. Hope Mutual Insurance Co., 5 How. Pr., 96.

5. A summons issued without mentioning the court from which it emanates, is defective.-Dix v. Palmer, 5 How. Pr., 233; James v. Kirkpatrick, ib., 241.

6. The return of a sheriff or other person, of the service of summons, is not conclusive against a defendant.-Van Rensselaer v. Chadwick, 7 How. Pr., 297.

7. Where the defendant is served with process by the plaintiff personally, he must take advantage of the irregularity by moving to set aside the proceedings before judg ment, otherwise his motion will be too late.—Myers v. Overton, 2 Abbott, 344.

29. [1854.] The summons shall be served by delivering a copy thereof, as follows:

1st. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, or managing agent thereof. 2d. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian; or if there be none within the state, then to any person having the care or

p. 39

control of such minor, or with whom he resides, or in whose service he

is employed.

3d. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such guardian.

1.

4th. In all other cases, to the defendant personally.

Service of a summons upon an elector upon an election day, is a void service.— Meeks v. Noxon, 1 Abbott, 280; 11 How. Pr., 189; Bierce v. Smith, 2 Abbott, 411; Hastings v. Farmer, 4 Coms., 296.

2. Service of summons on Sunday would be a void service.-Field v. Park, 20 John., 140.

3. A complaint must be personally served, and such service must be by delivering it to the defendant, or offering it to him within his reach, or laying it down within his reach.-Van Rensselaer v. Petrie, 2 How. Pr., 94.

4. 1st. Service against a corporation cannot be made upon a person in possession of the property, if not the president, head, secretary, or managing agent thereof.—Aiken v. Mariposa Quartz Rock Co., 6 Cal., 186.

5. The managing agent must be one whose agency extends to all the transactions of the corporation.-Brewster v. Michigan Central R. R. Co., 5 How. Pr., 183.

6. 2d. If the minor resides out of the state, a copy of the summons must be deposited in the post office and directed to the minor in the same manner as if it were over the age of fourteen years.-Gray v. Gray, 8 Cal., April T.

7. 3d. Service of a summons on a lunatic should be made personally, and also on his guardian if he has any.-Heller v. Heller, 6 How. Pr., 194.

8. An action cannot be brought against a lunatic, judicially declared of an unsound mind, without an application to the court.-Soverhill v. Dickson, 5 How. Pr., 109.

9. 4th. A judgment rendered without personal service is invalid.—Parsons v. Davis, 3 Cal., 421.

30. When the person on whom the service is to be made, resides out of the state, or has departed from the state; or cannot, after due diligence, be found within the state; or conceals himself to avoid the service of summons, and the fact shall appear by affidavit to the satisfaction of the court, or a judge thereof, or a county judge, and it shall in like manner appear, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or judge may grant an order that the service be made by the publication of the summons.

1. The affidavit of the plaintiff's attorney, showing that the defendant conceals himself to avoid service of process, is sufficient to obtain an order of publication.-Anderson v. Parker, 6 Cal., 201.

2.

These facts must be stated positively, and not on information or belief.—Evertson v. Thomas, 5 How. Pr., 45.

3. The time of the service of a copy of the complaint, when made by mail, is the time when it is mailed, not when it is received.-Peebles v. Rogers, 5 How. Pr., 208; Van Horne v. Montgomery, ib., 238.

31. The order shall direct the publication to be made in a newspaper to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week: Provided, that publication against a defendant residing out of the state, or absent therefrom, shall not be less than three months. In case of publication where the residence of a non-resident or absent defendant is known, the court or judge shall also direct a copy of the summons and complaint to be forthwith deposited in the post-office, directed to the person to be served, at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the state, shall be equivalent to publication and deposit in the post-office. In either case, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication. In actions upon contracts for the direct > payment of money, the court in its discretion may, instead of ordering publication, or may, after publication, appoint an attorney to appear for the non-resident, absent, or concealed defendant, and conduct the proceedings on his part.

1. The defendant has forty days' time to answer, after the service of the summons is completed by three months' publication.-Grewell v. Henderson, 5 Cal., 465; Dykers v. Woodward, 7 How. Pr., 313; Tomlinson v. Van Vechten, 6 ib., 199.

2. Judgment by default, upon publication, may be opened at any time within six months thereafter.-Guy v. Ide, 6 Cal., 99.

3. The court may appoint an attorney for an alleged concealed defendant, and a judgment against him will stand after six months have elapsed, unless this defendant file his bill to set aside the judgment on the ground of fraud, that he was not concealed.— Ware v. Robinson, 8 Cal., Jan. T.

4. The conditions must be strictly complied with to confer jurisdiction.—Hallett v. Righters, 13 How. Pr., 43.

5. When the service is made out of the state, though made by a sheriff, it should be returned with his affidavit of service.-Thurston v. King, 1 Abbott, 126; Morrell v. Kimball, 4 ib., 352.

6. If a summons served by publication misstates the day of the month on which the complaint is filed, it is not an irregularity which affects the judgment; but if the defendant is misled by the error, he may be relieved on the merits.-Jacquerson v. Van Erben, 2 Abbott, 315.

7. A delay to deposit in the post office a copy of the summons and complaint in foreclosure, pursuant to an order of publication, against an absent defendant, for fifteen

12

days after the granting of the order, is an irregularity which affects the title, and a purchaser will be relieved from his purchase thereof.-Back v. Crussell, ib., 386.

32. Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows:

1st. If the action be against the defendants jointly indebted upon a contract, he may proceed against the defendant served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendant served; or, See See! 1- FLS!

2d. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants.

1. This section supersedes the common law remedy of outlawry.-Stearns v. Aguirre, 6 Cal., 183.

2. If the defendants are all served, though at different times, judgment against those first served cannot be entered by the clerk, even in default of answer.- -Stearns v. Aguirre, 7 Cal., April T.

3. If the defendants are severally as well as jointly liable, the plaintiff may proceed against those only who are served.-Stannard v. Mattice, 7 How. Pr., 4.

33.

Proof of the service of the summons shall be as follows: 1st. If served by the sheriff or his deputy, the affidavit or certificate of such sheriff or deputy; or,

2d. If by any other person, his affidavit thereof; or,

3d. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, if the same shall have been deposited; or,

4th. The written admission of the defendant.

1. The returns of a summon may be amended.—Dorente v. Sullivan, 7 Cal., Jan. T. 2. 1st. The return of a sheriff or an affidavit of a person acting in his place, of the service of a summons, is not conclusive upon the defendant.-Van Rensselaer v. Chadwick, 7 How. Pr., 297.

3. 3d. The affidavit of a clerk, not stating that he is the principal clerk, is sufficient if the affidavit shows him to be the only clerk.-Gray v. Gray, 8 Cal., April T.

34. In case of service otherwise than by publication, the certificate or affidavit shall state the time and place of the service.

1. The evidence of the place of service, if insufficient to authorize the rendition of the judgment, should have been taken advantage of, either upon appeal or on motion to vacate the judgment.-Pico v. Sunol, 6 Cal., 294.

35. From the time of the service of the summons and сору of complaint in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.

1. What constitutes an appearance? See sec. 523.

2. An appearance by attorney amounts to a waiver of service.-Suydam v. Pitcher, 4 Cal., 280; Mahaney v. Penman, 4 Duer, 603.

3.

A voluntary and general appearance, besides being equivalent to a personal service of the summons, is a waiver of all defects in summons and previous proceedings.— Gardner v. Teller, 2 How. Pr., 241; Hill v. Smith, ib., 242; Mulkins v. Clark, 3 ib., 27; Georgia Lumber Co. v. Strong, ib., 246; Dix v. Palmer, 5 ib., 233, 3 Code R., 214; Flynn v. Hudson R. R. R. Co., 6 How. Pr., 308; Webb v. Mott, ib., 439; Hewitt v. Howell, 8 ib., 346; Carpenter v. New York & New Haven R. R. Co., 11 ib., 481; Hyde v. Patterson, 1 Abbott, 248.

TITLE IV.

OF THE PLEADINGS IN CIVIL ACTIONS.

FOR INTERVENTION, SEE SECTIONS 659, ET. SEQ.

36. The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court. 1. Pleadings must be strongly taken against the pleader.-Chipman v. Emeric, 5 Cal., 49.

2. The mode of taking advantage of defective pleadings discussed.-White v. Joy,* 3 Kern., 83.

37. All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act.

1. All rules of pleading that are merely technical, are abolished by this act.— Cobb v. West, 4 Duer, 44.

38. (1855.) The only pleading on the part of the plaintiff shall be