A summons issued on Sunday will be upheld where the exigencies of the case require immediate action in order to secure the rights of plaintiff.1

As to the time when a summons may issue the statutes of the several states differ. Where the writ is required. to be issued by the clerk or court it is generally provided that it shall issue after the complaint is filed. And if it is issued before it is void. But in some of the states the summons or citation is authorized to be issued before the complaint is filed, in which case it must, instead of stating that an action has been brought, set forth the time when it will be commenced. Where summons or other notice is authorized to be issued in advance of the commencement of the action, it is sometimes allowed to be issued and signed by the plaintiff or his attorney instead of the clerk or judge. But there is no reason why the same thing may not be authorized to be done by the clerk.

An alias summons may issue after the original summons has become functus officio, as by having been returned, the return day having passed, or the like. So where the original summons is out of the reach or control of the officer whose duty it is to serve it, it has been held that an alias writ may issue.3

By the return day of a summons, or other original writ, is meant, not only the day upon which the writ shall be returned into court by the officer, but the time when the defendant shall appear and answer the complaint.*

In some cases, the time when a summons is made returnable affects its validity. Thus it is held that a summons issued before, and made returnable after the next ensuing term of the court, is void. So it is held that

Stuart v. Palmer, 74 N. Y. 183, 188; Kuntz v. Sumption, 117 Ind. 1; 19 N. E. Rep. 474.

1 Pearson v. Alsalfa, 44 Fed. Rep. 358.

2 Mills v. State, 10 Ind. 114.

'Williams r. Welton, 28 Ohio St. 451, 469.

'Anderson's Law Dic. 898; 3 Bl. Com. 273.

Elliott's App. Pro., sec. 333; Briggs v. Sneghan, 45 Ind. 14; Culver v. Phelps, 130 Ill. 217; 22 N. E. Rep. 809.

where the statute requires the time for the appearance of a defendant in a court of inferior jurisdiction to be fixed in the summons, not more than a certain number of days from its issuance, a summons made returnable more than the time provided, from its date, is void.' But making a summons returnable in less than the stated time does not render it void.2

Generally, the first day in the term is made the return day, but any time during the term may be made so by statute, or the plaintiff may be authorized to fix any day in the term for the return of the summons, by indorsement on the complaint.*

If the statute fixes the return day, a summons made returnable on any other day gives the court no jurisdiction."

A writ made returnable on a legal holiday is not void, but the return day will be the first day thereafter when the court may legally transact business."

If a statute requires summons to be made returnable at a fixed hour, a summons which fails to fix the hour is defective, and may be set aside on motion, or upon review, writ of error, or appeal. Not only so, but such a summons would seem to be so uncertain as not to give the court jurisdiction. But it has been held otherwise in case of a domestic judgment."

In some of the states it is required by statute that the name of the attorney for the plaintiff be indorsed on the summons. But it has been held that a failure to comply with this requirement does not render the summons void, but only irregular. But in the case cited the names of the attorneys did appear on the face of the summons, and

1 Simmons v. Cochran, 29 S. C. 31; 6 S. E. Rep. 859; Pantall v. Dickey, 123 Pa. St. 431; 16 Atl. Rep. 789.

2 Clough v. McDonald, 18 Kan. 114; Swerdsfeger v. The State, 21 Kan. 475; In re Newman, 75 Cal. 213; 16 Pac. Rep. 887. But see Bell v. Good, 19 N. Y. Sup. 693.

5 Crowell v. Galloway, 3 Neb. 215, 218.

Johnson v. Lynch, 87 Ind. 326.

6 Ostertag v. Galbraith, 23 Neb. 730; 37 N. W. Rep. 637.

Hendrick v. Whittemore, 105 Mass. 23.

* Shinn v. Cummins, 65 Cal. 97; 3 Pac. Rep. 133.

the opinion of the court rests, mainly, upon the fact that the failure to indorse the name of the attorney thereon did not affect the substantial rights of the defendant where the name appeared elsewhere on the writ. But if the name of the attorney is omitted entirely, the summons is still sufficient to give the party notice of all that is necessary for him to know, except it may be the person upon. whom to serve his answer, which must appear from the complaint, and the summons, under the later and more liberal rules, would still not be void.'

A summons which, standing alone, would be void for uncertainty, misnomer of the parties to the action, or the like, may be aided and rendered valid by the complaint, or declaration, if properly annexed thereto.2

37. SERVICE OF PROCESS.-The time and manner of service of process is governed, almost entirely, by statutes in the several states. These statutory provisions differ in matters not material, but in respect of substantial requisites, affecting the rights of defendants, they will be found to be very similar. The purpose and object of all of the statutes is to give a party ample time and opportunity to appear and make his defense.3

The statutes regulating the issuance and service of original process are so nearly alike in all essential respects, differing mainly as to matters of form, and the way in which the same thing shall be done, that we might reasonably expect to find a like uniformity and concurrence in the decisions of the courts respecting them. But an examination of the cases speedily dispels this idea. The decisions are numerous and irreconcilably conflicting on many, if not most, of the questions arising under this important branch of the law.

Service of process may be considered under four distinct heads, viz., by whom, when, where, and how service must be made. And as incidental to these, the last particularly, the person upon whom service is to be made becomes ma

1 Jewett v. Garrett, 47 Fed. Rep. 625; post, sec. 37. 'Scudder v. Massengill, 14 S. E. Rep. 571.

3 Ante, sec. 36.

terial. Whether the party served is a resident or nonresident, a married woman, a minor, an insane person, or one acting in an official capacity, or a corporation, frequently affects the validity or sufficiency of the service. All of these, except the question of service on corporations, will receive attention in this section. The subject of service on corporations will be taken up in a subsequent section.

The general rule is that the jurisdiction of a court "can never be called into exercise unless through the medium. of process complete in law and duly served."1

1. By whom service must be made.-As a general rule, certain officers are authorized to serve process, such process must be directed to them, and they alone can make legal service. At common law no person but a public officer can serve process.3 Service of process by one not authorized to serve it is a nullity, and confers no jurisdiction.1

Usually the sheriff is authorized to serve process issuing out of the state courts of superior original jurisdiction, constables process issuing out of the inferior courts, and the marshal process issuing out of the federal courts."

But sometimes service may legally be made by either of two or more officers, as may be provided by law, and the service of either will be valid. This, however, is a matter subject to statutory regulation and control, and in many of the states private individuals are authorized, under certain conditions and restrictions, to serve' original process."

So officers who are required to make service are sometimes authorized to appoint special deputies or bailiffs to serve a particular writ, or serve process within a limited.

1 Peck v. Strauss, 33 Cal. 680; Allyn v. Davis, 10 Vt. 547; Bank of Burlington v. Catlin, 11 Vt. 106; Dolbear v. Town of Hancock, 19 Vt. 389. Falvey v. Jones, 80 Ga. 130; 4 S. E. Rep. 264; Kyle v. Kyle, 55 Ind.

2

Parker v. Dacres, 1 Wash. St. 190; 24 Pac. Rep. 192.

7 Johnson v. MacCoy, 32 W. Va. 552; 9 S. E. Rep. 887.

territory. And, without statutory anthority, an officer may appoint a special bailiff to do a particular act.2 An infant may be appointed a special bailiff to do a particular act, but not as a general deputy.3

The appointment of a general deputy vests him with authority to do every act that might be done by the principal, except to appoint a deputy, and any agreement or understanding between the principal and deputy, limiting the extent of his authority, is void as to the public. And, while a deputy can not appoint a deputy, he may appoint. another to do a particular act, and therefore may authorize a private person to serve a particular writ. But where the appointment is special, the authority of the deputy is limited by such appointment. Therefore, where an appointment is made by an officer having authority to serve process throughout the limits of the state, of a deputy, or special bailiff, to serve all process within a certain county, a service by such deputy in another county is in

valid.5

So a special bailiff appointed to serve a particular writ, can not legally go beyond the authority thus given him, and if he does, his acts are invalid. But where one appointed as a special bailiff is competent to make service as a private individual, his service may be good under the statute, although insufficient under his special appointment. In such case, however, the proof of service must be different. It can not be by the return of the party serving the writ, in the name of his principal, but must be by his affidavit showing his competency to serve the writ as a private individual, and that as such he duly served

1 Guarantee Trust, etc., Co. v. Buddington, 23 Fla. 514; 2 Sou. Rep. 885.

'New Albany, etc., R. R. Co. v. Grooms, 9 Ind. 243; Proctor v. Walker, 12 Ind. 660.

3 New Albany, etc., R. R. Co. v. Grooms, 9 Ind. 243.

Willingham v. State, 21 Fla. 776, 778; Guarantee Trust, etc., Co. v. Buddington, 23 Fla. 514; 2 Sou. Rep. 885, 889.

'Guarantee Trust, etc., Co. v. Buddington, 23 Fla. 514; 2 Sou. Rep. 885, 889.