further order summons was subsequently issued and published, it was held that the attempt thus to acquire jurisdiction of the defendant was ineffectual, and that a judgment rendered against him by default, without any other service of process, was void.88 The question of the sufficiency of an affidavit and order for publication of summons may be raised by motion made in the suit, or by an appeal supported by a statement.89 An order to publish a summons made in advance of the issuance of the summons is a nullity.90 The judge has no power to order a summons to issue, but only to order a summons already issued to be served in a special manner.91 The court acts judicially in granting the order, and can know nothing about the facts upon which it is granted, except from the affidavit." An order for the publication of a summons, which presupposes that the debtor it a resident of the state, but has departed therefrom, or keeps himself concealed therein, must direct a copy of the summons and complaint to be deposited in the post-office, directed to the defendant at his place of residence, though it appear from the affidavit that he has departed therefrom.93 § 3940. Affidavit of publication. 94 Form No. 954. [TITLE.] A. B., of said poses and says as follows: 92 county, being duly sworn, de I. I am a citizen of the United States, and at all the times 88 People v. Huber, 20 Cal. 81. 89 Sharp v. Daugney, 33 Cal. 505. 90 People v. Huber, 20 Cal. 81. 91 McMinn v. Whelan, 27 Cal. 304; Forbes v. Hyde, 31 id. 342. 92 Ricketson v. Richardson, 26 Cal. 149. 93 Towsley v. McDonald, 32 Barb. 604. An order for publication which does not direct that a copy of the complaint and summons be forthwith mailed to the defendant, and which does not provide the length of time for publication, is insufficient, and the court obtains no jurisdiction of the person of the defendant by publication under such an order. Park v. Higbee, 6 Utah, 414. But where the deposit was made in the post-office on the day the order was signed, the order was held sufficient, although it failed to specify that the deposit should be made "forthwith," as provided by the statute. Anderson v. Goff, 72 Cal. 65. 94 It will be observed that many of the affidavits herein are made in the first' person. This mode is the universal English practice, and is recommended by the Code commissioners of the state of hereinafter mentioned was over eighteen years of age, and am not a party to the above-entitled action. II. I am the principal clerk and bookkeeper in the office of the daily .., a newspaper printed and published in [or printer, foreman, or III. The summons of which the annexed is a printed copy was published in said newspaper at least once each week for months, commencing on the 18.., and ending on the 18.. [JURAT.] day of day of [SIGNATURE.] 95 3941. By whom made, and what to contain. Where the affidavit was made by a publisher and proprietor, and not by the printer, foreman, or chief clerk, it was held sufficient, as being within the spirit of the statute." When service is had by the publication, proof thereof can only be made by affidavit of the printer, his foreman or clerk; and the affidavit should state that the person taking the same holds one of these positions.96 And there being but one clerk in the office of the newspaper, and the affidavit describing him as principal clerk, the affidavit was held sufficient.97 If the affidavit does not show facts sufficient to give jurisdiction, but the judgment in the recitals supplies those facts, or recites that service had been had upon the defendant, the judgment will control. It will be presumed that other evidence than that contained in the judgment-roll was made. The recital imports absolute verity.98 An affidavit commencing, "A. B., principal clerk, etc., being sworn, deposes," etc., was held insufficient.99 He should swear that he is principal clerk in direct and positive terms. New York, and I here take the liberty of recommending it to the profession, as it certainly appeals more directly to a man's conscience than if made in the third person. 95 Sharp v. Daugney, 33 Cal. 505. 96 Steinbach v. Leese, 27 Cal. 295. 97 Gray v. Palmer, 9 Cal. 616. 98 Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742, 99 Steinbach v. Leese, 27 Cal. 295. 3942. Affidavit of service by mail of summons and copy of complaint. [TITLE.] [VENUE.] A. B., of as follows: Form No. 955. being duly sworn, deposes and says I. I am, and at the several times hereinafter mentioned was, a citizen of the United States, over eighteen years of age, and am not a party to the above-entitled action. II. That on the ... .. day of ... . . 18.., the complaint in the said action was filed, and afterwards, to-wit, on the ..... day of ..... 18.., an order was made by the court for the publication of the summons in the said action, and also a further order that a copy of said complaint and a copy of the said summons should be forthwith deposited in the post-office, and directed to the defendant in said action, at his place of residence, to-wit, at the city of in the county of .... state of ... ; that 18.., afterwards, to-wit, on the ........ day of and in pursuance of said order of the court in the premises heretofore made, I deposited in the post-office at the city of a copy of the said summons, attached to a copy of the said complaint, directed to C. D., the said defendant, at the city of state of ... in the county of the place of his residence as aforesaid, and prepaid the postage thereon. [JURAT.] [SIGNATURE.] 3943. Statement in affidavit. The affidavit of deposit of summons in post-office need not state that the deposit was made by a white male citizen, or that the affiant is such citizen. It is sufficient if the deposit and affidavit are made by a human being;100 nor is it necessary to state that there is a communication by mail between the place of deposit and the place to which the packet was addressed, nor that the post-office was a United States post-office.1 101 100 Sharp v. Daugney, 33 Cal. 505. 101 Id. 8944. Admission of service. [TITLE.] Form No. 956. I admit [due and] personal service of the within upon me, made this .... day of 18.., at [SIGNATURE.] 3945. Date. Where defendant's attorneys accepted service of summons, but attached no date thereto, the date of the return by the sheriff was held to be the true date of the service. When the place where the writ is served is not stated, the court should assume that it was served within the jurisdiction of the officer to whom it was directed. 102 3946. Judicial notice. Courts will take judicial notice of the signatures of their officers as such, but there is no rule which extends such notice to the signatures of parties to a cause. When, therefore, the proof of service of process consists of the written admissions of defendants, such admissions, to be available in the action, should be accompanied with some evidence of the genuineness of the signatures of the parties; in the absence of such evidence, the court can not notice them.103 § 3947. Must be in writing. An acknowledgment of service of summons is only sufficient when reduced to writing and subscribed by the party. A verbal acknowledgment is not sufficient. 104 § 3947a. Irregular or defective summons quashing. Where a summons is irregular or defective, the remedy, if any, is by application to the trial court to quash or set it aside. 105 A motion to quash does not stay proceedings, or deprive the clerk of the power to enter judgment on a money demand against the defendant on his default.108 Under Colorado practice, it is not sufficient ground to quash a summons that it was signed by the attorneys of the plaintiff, and was not under the seal of the court. 107 102 Crane v. Brannan, 3 Cal. 192. 103 Alderson v. Bell, 9 Cal. 315. 107 Mining Co. v. Frost, 15 Col. 310; Rand v. Pantagraph Co., 1 Col. App. 270. CHAPTER III. APPEARANCE. § 3948. In general. It is provided by statute that after the filing of the complaint a defendant in the action may appear, answer, or demur, whether the summons has been issued or not; and such appearance, answer, or demurrer shall be deemed a waiver of summons.1 A voluntary appearance by a defendant. gives jurisdiction without issuance of summons, as the only object of the summons is to bring a party into court, and if that object is obtained without issuance or service, there can be no injury to the defendant.3 So a guardian may waive process, and enter his appearance for his ward. Appearance covers all defects and irregularities in process, and the want of service." A general appearance not only waives defects in a writ or summons, but gives jurisdiction over the person in cases where the writ was void. A general appearance and the filing of an answer after denial of a motion to quash the return upon the summons constitute a waiver of all irregularities or defects in the issue, service, or return of the process. A defendant can 1 Cal. Code Civ. Pro., § 406; Code of Oregon, § 59; Wash. Ter., § 40; Arizona, § 22; Idaho, § 22; N. Y. Code, § 127; Swan's Ohio Pl. 22. 2 Id., 416; Hayes v. Shattuck, 21 Cal. 51; Tyrrell v. Baldwin, 67 id. 1; Dyas v. Keaton, 3 Mont. 495, 504; Carrington v. Bents, 1 McLean, 174; Shields v. Thomas, 18 How. (U. S.) 253. 3 Smith v. Curtis, 7 Cal. 587. 4 Sprague v. Litherberry, 4 McLean, 442. 5 Caswall v. Martin, 2 Stra. 1072; Wood v. Lide, 4 Cranch, 180; Sands v. Knox, 3 id. 498; McCoy v. Lemons, Hempst. 216; Barber v. Briscoe, 8 Mont. 214; Kinkade v. Myers, 17 Oreg. 470; see Pollard v. Dwight, 4 Cranch, 421; The Merino, 9 Wheat. 391; Flanders v. Aetna Ins. Co., 3 Mass. 158; Segee v. Thomas, 3 Blatchf. 11; Harrison v. Rowan, 1 Pet. C. C. 489. See, as to appearance in case of foreign attachment, Toland v. Sprague, 12 Pet. 300. See, in case of an absent defendant, Shields v. Thomas, 18 How. Pr. 253. 6 State v. McCullough, 3 Nev. 202: Farrar v. United States, 3 Pet. 459: Pollard v. Dwight, 4 Cranch, 421. 7 Ruby, etc., Milling Co. v. Gurley, 17 Col. 199; also, to same effect, |