only affects the service of the summons, and the defendant is entitled to forty days after the period of publication to file his answer. 113 § 3911. Deposit in post-office. In case of publication where the residence of a nonresident 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.114 Service of the summons upon infants, although under the age of fourteen years, should be made by depositing a summons and certified copy of the complaint in the post-office, directed to the infant, the same as to other defendants.115 The failure to deposit such, when directed to a minor, is not cured by the appearance of the mother in her own behalf.116 When an order for service by publication is obtained, if personal service out of the state is effected, it is unnecessary to proceed to make publication, and to deposit a summons in the post-office.117 In New York it is held that such personal service out of the state is only equivalent to mailing, and can have no greater effect.118 A delay of four days in 113 Grewell v. Henderson, 5 Cal. 465. In Colorado, fifty days must elapse after the last publication required by law before the defendant can properly be considered in default. O'Rear v. Lazarus, 8 Col. 608. Publication of the summons beyond the time required by the order of the court does not extend the time in which the defendant is required to answer. Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34. 114 Cal. Code Civ. Pro., § 413; Back v. Crussell, 2 Abb. Pr. 386; Van Wyck v. Hardy, 11 id. 474; S. C., 20 How. Pr. 222; Victor Mill, etc., Co. v. Justice's Court, 1 West Coast Rep. 299. The attorney for the plaintiff may deposit a copy of the summons and complaint in the post-office, and his affidavit is sufficient proof thereof. Anderson v. Goff, 72 Cal. 34; 1 Am. St. Rep. 134; and the deposit may properly be made in the post-office where the attorney resides and has his office, although the order for publication was made at a different place. Mudge v. Steinhart, 78 Cal. 34; 12 Am. St. Rep. 17. 115 Gray v. Palmer, 9 Cal. 616. 116 Id. 117 Abrahams v. Mitchell, 8 Abb. Pr. 123. 118 Fiske v. Anderson, 12 Abb. Pr. 8. Where the summons and complaint were mailed to the defendant and were taken from the post-office by the defendant's husband, and delivered to her in a sealed envelope, this was held not to be personal service, within the meaning of the statute permitting personal service without the state as a substitute for publication and deposit in the post-office. mailing, caused by waiting to have the papers printed, does not render the service irregular.119 Fifteen days' delay would make it irregular. 120 The pro § 3912. Service by publication, when conclusive. visions of the statute prescribing the mode of acquiring jurisdiction of the person of the defendant by publication of the summons must be strictly pursued.121 If the Code intended a judgment rendered against a defendant served by publication to be final under all circumstances, the constitutionality of such service might admit of very grave doubt. But the legislature did not so intend.122 The affidavit is only prima facie evidence of the facts, and if untrue, the defendant can at any time have the judgment set aside. 123 If the defendant in fact conceals himself to avoid the service of process, he will not be heard to complain that he was not personally served.124 If jurisdiction of the person of a defendant was to be acquired by publication of the summons in lieu of personal service, the statutory mode must be strictly pursued; and if it appear that the court never had juris Hospital Trust Co. v. Keeney, 1 N. Dak. 411. A Nevada statute (Gen. Stat., § 3051) provides that in a suit against a corporation organized under the laws of California, a copy of the summons and complaint shall be mailed to the president and trustees of such corporation at their place of business in California, in addition to the personal service required by the same statute, and it is held that in the absence of the personal service so required, the mailing of a copy of the summons and complaint to the president and trustees adds no force to the officer's return on the summons. Lonkey v. Mining Co., 21 Nev. 312. Personal service out of the state can be made, if at all, only when a publication of the summons has been ordered, and a prior service out of the state is of no avail. McBlain v. McBlain, 77 Cal. 507; and see Freeman v. Alderson, 119 U. S. 185. 119 Van Wyck v. Hardy, 11 Abb. Pr. 473. 120 Back v. Crussen, 2 Abb. Pr. 386. 121 Jordan v. Giblin, 12 Cal. 100; Cohn v. Kember, 47 id. 145; Kendall v. Washburn, 14 How. Pr. 380. It is necessary that every material requirement of the statute concerning service of summons by publication be carefully and strictly pursued in order to give the court jurisdiction. Davis v. Monat Lumber Co., 2 Col. App. 381; Roberts v. Roberts, 3 id. 6; Beckett v. Cunin, 15 Col. 281; O'Rear V. Lazarus, 8 id. 608. 122 Ware v. Robinson, 9 Cal. 111. 123 Id. 124 Id.; see, also, Swain v. Chase, 12 Cal. 285; Ricketson v. Richardson, 26 id. 154; Braly v. Seaman, 30 id. 617. diction of the person of the defendant by reason of noncompliance with the provisions of the statute, the judgment entered in the case against such defendant will be pronounced a nullity, whether it come directly or collaterally in question.15 But a judgment rendered against a nonresident of the state who has not been personally served within the state, nor submitted himself to the jurisdiction of the court, can only be enforced within the state in which the judgment is rendered, and no personal liability will result therefrom which will be recognized beyond the state in which the action originated.126 125 McMinn v. Whelan, 27 Cal. 312; see, also, Forbes v. Hyde, 31 id. 347-355; McCauley v. Fulton, 44 id. 359; Martin v. Parsons, 50 id. 502. 126 See Wilson v. Graham, 4 Wash. C. C. 53; Folger v. Columbian Ins. Co., 99 Mass. 267; 96 Am. Dec. 747; Holmes v. Holmes, 4 Lans. 388; Weil v. Lowenthal, 10 Iowa, 578; Harris v. Hardeman, 14 How. (U. S.) 340; Reber v. Wright, 68 Penn. St. 471; Freeman on Judgments, § 564; Pennoyer v. Neff, 95 U. S. 728; Hart v. Sansom, 110 id. 151; Belcher v. Chambers, 53 Cal. 635; Smith v. Montoya, 1 West Coast Rep. 152; McKinney v. Collins, 88 N. Y. 216. CHAPTER II. FORMS OF SUMMONS AND AFFIDAVITS OF SERVICE. § 3913. Summons in action on contract for payment of money only. Form No. 945. [STATE AND COUNTY.] A. B., Plaintiff, against C. D., Defendant. [COURT.] Action brought in the Superior Court of the state of California, in and for the city and county of San Francisco, and the complaint filed in said city and county of San Francisco, in the office of the clerk of said Superior Court. The People of the State of California send greeting: To.... defendant: You are hereby required to appear in an action brought against you by the above-named plaintiff in the Superior Court of the state of California, in and for the city of ..... .... and county of ... ... ., and to answer the complaint filed therein, within ten days (exclusive of the day of service) after the service on you of this summons, if served within this county; or if served elsewhere, within thirty days. The said action is brought to recover the sum of . dollars, gold coin of the United States, due from defendant to plaintiff upon [a certain promissory note made by the defend ant on the for .... ... day of..... 18.., to said plaintiff, .... months after date], particularly described in the complaint; also for interest thereon, at the rate of ..... per cent. per month. And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiff will take judgment against you for said sum of .. dollars, in gold coin of the United States, interest and costs. Given under my hand and the seal of the Superior Court of the state of California, in and for the city and county of 3914. The same. If the recovery of money or damages be demanded, the amount thereof must be stated in the prayer of the complaint.1 The relief granted to a plaintiff, if there be no answer, can not exceed that which he shall have demanded in his complaint.2 A notice in summons, that plaintiff will take judgment for the given sum, "with interest" thereon from a specified day, is sufficient.3 In an action for work and labor done, and for the enforcement of a mechanic's lien, it is sufficient if the notice in the summons says "that plaintiff will take judgment for a certain sum specified therein." So held in the Supreme Court of Oregon. The judgment by default is fatally defective if the summons does not apprise the defendant that, upon his failure to appear and answer, the plaintiff will take judgment against him for a certain sum.5 Where no other notice was given than that judgment would be taken for a specified sum, the plaintiff can only take an ordinary judgment upon default for the money demanded." The People of the state of California send greeting: To ..... defendant. You are hereby required to ap pear in an action brought against you by the above-named plaintiff, in the Justice's Court of township, county of state of California, and to answer before the justice at his office in the said township, the complaint filed therein, 1 Cal. Code Civ. Pro., § 426, subd. 3. 2 Id., § 580. A judgment for damages in excess of the amount prayed for is erroneous. Burke v. Roch, 75 Cal. 356; see § 3900, ante. 3 People v. Woodlief, 2 Cal. 241; King v. Blood, 41 id. 317; Swift v. De Witt, 3 How. Pr. 280. 4 Willamette Falls & M. Co. v. Riley, 1 Oreg. 183. As to when the summons must specify the amount, see Commissioners of Albany v. Classon, 17 How. Pr. 193; Cemetery Board v. Teller, 8 id. 504; Diblee v. Mason, 1 Code R. 37. 5 State v. Woodlief, 2 Cal. 241. 6 Porter v. Hermann, 8 Cal. 625. |