of and I am informed by them that they are ignorant of defendant's residence, but that he is not, as they believe, within this state.]

III. That a summons was duly issued out of this court to the sheriff of the city and county of ..... ..., with directions to said sheriff to serve the same upon said defendant, and the said sheriff has returned the same to the clerk of this court, with his return thereon indorsed, to the effect that the said defendant could not be found in his county [or state particulars of the return].

IV. I have fully and fairly stated the facts of the case to E. F., of No. .... street, in the city of San Francisco, my counsel, and I am by him informed, and I verily believe, that I have a good cause of action in this suit against the said defendant, as will fully appear by my verified complaint filed herein, to which reference is hereby made, and the said defendant, C. D., is a necessary and proper party defendant thereto, as I am advised by my said counsel after such statement made, as aforesaid, and as I verily believe.

V. Personal service of said summons can not be made on the said defendant, and I, therefore, demand an order that service of the same may be made by publication.

A. B.

§ 3935. Affidavit essential. Before jurisdiction of a defendant can be acquired by publication of summons, it must appear by affidavit either that the defendant resides out of the state, or has departed from the state, or can not, after due diligence, be found within the state, or that he conceals himself to avoid the service of summons; and in addition thereto it must also appear by affidavit that a cause of action exists against the defendant, or that he is a necessary or proper party.

63

§ 3936. Affidavit, what must show. The affidavit must show whether the residence of the person upon whom service is sought is known to the affiant, and if known, the residence. must be stated.64 Nor is it sufficient merely to repeat the lan

e3 Braly v. Seaman, 30 Cal. 610; see Cal. Code Civ. Pro.. § 412: People v. Mullan, 65 Cal. 396; County of Yolo v. Knight, 70 id. 431. 64 Ricketson v. Richardson, 26 Cal. 149; Braly v. Seaman, 30 id. 610; Hyatt v. Wagenright, 18 How. Pr. 248; Cook v. Farren. 34 Barb. 95: S. C., 12 Abb. Pr. 359: S. C.. 11 id. 40; Victor M., etc., Co. v. Justices' Court, 1 West Coast Rep. 299.

69

guage or substance of the statute.6 An affidavit in such case must state facts which show that due diligence to find the defendant has been used, and it must also appear therefrom that the diligence has not been rewarded with a discovery.66 Where the affidavit for publication of summons presents some evidence tending to prove each jurisdictional fact, but of a character clearly too inconclusive to justify an order of publication, the order is erroneous, and the judgment will be reversed on appeal; but it is not void.67 If there is a total want of evidence upon which to base the order, the judgment is void.68 In the former case the judgment can not be attacked collaterally, but only on appeal. Facts should be set out in an affidavit for an order to publish summons, and not a general expression of opinion or belief that an ultimate jurisdictional fact exists, without the probative facts upon which such opinion or belief is founded.70 An affidavit to obtain an order for publication of summons, which states that the deponent "has a good cause of action in this suit against the said defendant, and that he is a proper party defendant thereto, as he verily believes," does not state any fact tending to show a cause of action, and an order and publication based on it are void.71 An affidavit for publication on the ground of the absence of the defendant, which states that the defendant could not, after due diligence, be found in the county where the action was pending; that affiant had inquired of F., who is an intimate friend of defendant, as to his whereabouts; that F. was unable to inform him; and that plaintiff did not know where defendant could be found within the state, was held insufficient.72 It is not sufficient to state generally, in such affidavit, that after due

65 Ricketson v. Richardson, 26 Cal. 149.

66 Braly v. Seaman, 30 Cal. 610; Forbes v. Hyde, 31 id. 342; Israel v. Arthur, 1 West Coast Rep. 286; Victor M., etc., Co. v. Justice's Court, id. 299.

67 Forbes v. Hyde, 31 Cal. 342.

68 Id.

09 Id.; see, also, McCauley v. Fulton, 44 Cal. 359; Martin v. Parson, 50 id. 202.

70 Forbes v. Hyde, 31 Cal. 342; Collins v. Ryan, 32 Barb. 647; Roche v. Ward, 7 How. Pr. 416; Towsley v. McDonald, 32 Barb. 804.

71 Forbes v. Hyde, 31 Cal. 342; Sharp v. Daugney, 33 id. 515; 91 Am. Dec. 653; Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742.

72 Swain v. Chase, 12 Cal. 283.

diligence the defendant can not be found within the state, or that the plaintiff has a good cause of action against him, or that he is a necessary party; but the acts constituting due diligence, or the facts showing that he is a necessary party, should be stated.73 It must be proved that the person to be served can not, after due diligence, be found in the state.74 Where the attorney of record makes an affidavit that diligent search has been made for the defendant, and that he conceals himself to avoid service of process, it is sufficient for an order for the service of summons to be made by publication.76

§ 3936a. Affidavit — continued. The affidavit is the complaint upon which the judgment order for service is based, and should state all the probative facts necessary to justify the court in being satisfied of the existence of the ultimate facts required by the statute.76 But the cause of action need not be set forth with the same particularity as is required in a complaint." The complaint may be read with the affidavit, when made a part of it, for the purpose of aiding the latter.78 If the affidavit shows that the person on whom the service is to be made resides out of the state it is sufficient, without showing acts constituting due diligence. Any statement in regard to diligence in such affidavit is immaterial.79 Nor is it necessary to show by the affidavit in such case that an attachment has been issued or levied, or that the defendant has any property in the state.80 But an affidavit which merely states that the defendant has departed from the state and can not be found therein, without stating that due or any diligence had

78 Ricketson v. Richardson, 26 Cal. 152; Ligare v. Railroad Co., 76 id. 610; Warren v. Tiffany, 9 Abb. Pr. 66; 17 How. Pr. 106.

74 Hurlburt v. Hope Mut. Ins. Co., 4 How. Pr. 278; Wortman v. Wortman, 17 Abb. Pr. 66; Irving Savings Institute v. Hardman, id. 67, note.

75 Anderson v. Parker, 6 Cal. 201; Towsley v. McDonald, 32 Barb. 604. As to insufficiency of affidavit on these points, see Swain v. Chase, 12 Cal. 283; Godkin v. Redgate, 1 Cromp. & J. 401.

76 Goodale v. Coffee, 24 Oreg. 346; Colburn v. Barrett, 21 id. 27. 77 De Corvet v. Dolan, 7 Wash. St. 365.

78 McDonald v. Cooper, 32 Fed. Rep. 745; Goodale v. Coffee, 24 Oreg. 346. Sufficiency of affidavit-instance. See Bradford v. McAvoy, 99 Cal. 324.

79 Paris v. Raynor, 76 Cal. 646; and see Pike v. Kennedy, 15 Oreg.

80 Anderson v. Goff, 72 Cal. 65.

been used to ascertain his whereabouts, or that any effort had been made to obtain personal service, and no reason is given for not stating his residence, is wholly insufficient. The probatory facts constituting the diligence of the plaintiff to find the defendant should be stated.81 Under Colorado practice, the affidavit is to be acted upon exclusively by the clerk of the court, and it is only necessary that it contain sufficient to inform the clerk that the defendant is a nonresident; that the plaintiff has a cause of action, and that the defendant is a necessary party thereto. It is not required by the statute that the clerk judicially ascertain, before granting the order, that such a cause of action has been stated in the affidavit as will sustain a judicial decree.82 The affidavit must be by a party, and an attorney of the party is not competent to make it.83

3937. On infant. The requirements of the statute being positive, that in actions against a minor under the age of fourteen years, personal service of summons must be made; in cases where he resides out of the state, and his residencé is known to plaintiff, such residence should be stated in the affidavit for publication.84 But the court will presume, unless the contrary appears, that minors were over the age of fourteen years, in which case no service is required on the mother, or other person having them in charge, in order to sustain a service by publication.85

§ 3938. Order for publication of summons.

[TITLE.]

Form No. 953.

Upon reading and filing the affidavit of A. B., and it satisfactorily appearing therefrom to me, the judge of the Superior Court of the state of .... in and for the county of

that the defendant C. D. resides out of this

81 Palmer v. McMaster, 13 Mont. 184; also, to same effect, see Same v. Same, 8 id. 186; Alderson v. Marshall, 7 id. 288; McCracken v. Flanagan, 127 N. Y. 493; 24 Am. St. Rep. 481; Galpin v. Page, 3 Sawyer, 93; Beach v. Beach, 6 Dak. Ter. 371; Yorke v. Yorke, 3 N. Dak. 343; State v. Superior Court, 6 Wash. St. 352.

82 Calvert v. Calvert, 15 Col. 390.

83 Everett v. Insurance Co., 4 Col. 509; and see Sylph, etc., Milling Co. v. Williams, 4 id. 345; Frybarger v. McMillen, 15 Col. 349; Morton v. Morton, 16 id. 358.

84 Gray v. Palmer, 9 Cal. 616.

85 Emeric v. Alvarado, 1 West Coast Rep. 708; 64 Cal. 529.

state, and can not, after due diligence, be found therein [or has departed from the state; or can not, after due diligence, be found within the state; or conceals himself to avoid the service of summons, as the case may be], and it appearing from the affidavit aforesaid that a cause of action exists in this action in favor of the plaintiff therein, and against the said defendant, and that the said defendant C. D. is a necessary and proper party defendant thereto; and it further appearing that a summons has been duly issued out of said court in this action, and that personal service of the same can not be made upon the said defendant for the reasons hereinbefore contained, and by the said affidavit made to appear: on motion of E. F., Esq., attorney for the plaintiff, it is ordered that the service of the summons in this action be made upon the defendant by publication thereof in the a newspaper published at

.., hereby designated as the newspaper most likely to give notice to said defendant; that such publication be made at least once a week for two months.

And it further in like manner satisfactorily appearing to me. that the residence of said defendant is known to be at the city of .. in the county of in the state

of

....

it is ordered that a copy of the summons and a copy of the complaint in this action be forthwith deposited in the post-office, postpaid, directed to the said defendant, at his said place of residence.

J. D., Judge of the Superior Court

of the county of

...

state of

[DATE.]

§ 3939. Order, what must state. The order must state the facts proved by the affidavit upon which it is based.86 It is not sufficient for the order to state generally that the defendant resides out of the state, or can not after due diligence be found within the state, or that a cause of action exists against the defendant.87 Where, after complaint filed, and before any summons was issued, an order was obtained from the judge that summons do issue," and that it be published, and without any

86 Ricketson v. Richardson, 26 Cal. 149.

87 Id. 152. Jurisdiction in cases of published summons is based upon the affidavit, and not on the recitals of fact found in the order. The order is only the conclusion of the court based upon the affidavit. Goodale v. Coffee, 24 Oreg. 346.