The relief demanded in the petition, and of which notice is given in the publication, limits the jurisdiction of the court to grant relief, where there is no appearance, and no other can be given.' The death of a party against whom publication is being made, and before the same is complete, suspends the notice, as well as the action, and a new notice must be given to substituted parties.2 Where the time for which publication shall be made is measured, in the statute, by months, the term is usually construed to mean calendar and not lunar months, in this country, although the opposite construction prevailed in England until changed by statute.3 The fact that one of the necessary publications was made on a legal holiday does not affect the validity of the judgment. As to what is a sufficient length of time for the publication of summons or notice, see the authorities cited below.5 f. Proof of publication. The validity of a judgment does not depend upon the proof of publication, but upon the fact that the proper publication has been made. There etc., Co. v. Buddington, 27 Fla. 215; 9 Sou. Rep. 246; Payne v. Hardesty, 14 S. W. Rep. 348. 1 Vorce v. Page, 28 Neb. 294; 44 N. W. Rep. 452; Stuart v. Anderson, 70 Tex. 588; 8 S. W. Rep. 295. 1 Paget v. Pease, 2 N. Y. Sup. 335; Reilly v. Hart, 8 N. Y. Sup. 717; Reilly . Hart, 130 N. Y. 625; 29 N. E. Rep. 1099. 3 Guaranty Trust, etc., Co. v. Buddington, 27 Fla. 215; 9 Sou. Rep. 246; Guaranty Trust, etc., Co. v. Green Cove, etc., R. Co., 139 U. S. 137; 11 Sup. Ct. Rep. 512, 515. Malingren v. Phinney, 52 N. W. Rep. 915. 5 Davis v. Robinson, 70 Tex. 394; 7 S. W. Rep. 749; Traylor v. Lide, 7 S. W. Rep. 58; Frisk v. Reigelman, 75 Wis. 499; 43 N. W. Rep. 1117; Security Co. v. Arbuckle, 123 Ind. 518; 24 N. E. Rep. 329; Bleidorn v. Pilot Mountain Coal, etc., Co., 89 Tenn. 166, 204; 15 S. W. Rep. 737; In re Koch's Will, 12 N. Y. Sup. 94; Market Nat. Bank v. Pac. Nat. Bank, 89 N. Y. 397; Guaranty Trust, etc., Co. v. Buddington, 27 Fla. 215; 9 Sou. Rep. 246; Guaranty Trust, etc., Co. v. Green Cove, etc., R. Co., 139 U. S. 137; 11 Sup. Ct. Rep. 512; State v. Georgia Co., 109 N. C. 310; 13 S. E. Rep. 861; Cox v. North Wis. Lum. Co., 51 N. W. Rep. 1130. · In re Newman, 75 Cal. 213, 220; 7 Am. St. Rep. 146; 16 Pac. Rep. fore an omission to make the formal proof may be supplied even after judgment.' Or, in case the proof can not be found, it will be presumed.' And the proof may be amended to conform to the facts in order to show a sufficient publication.3 The failure to make the proof in the prescribed form is a mere irregularity and does not render the judgment void. But where a judgment appears on its face to be void, the right to supply or amend the proof of publication so as to show it to be valid must be subject to intervening rights of third parties acquired in good faith." And it must be remembered that in some of the cases it is held that the facts necessary to show jurisdiction must affirmatively appear on the face of the record in case of publication against a non-resident defendant, even in case of a collateral attack, which is inconsistent with the doctrine that the necessary facts may be established by evidence dehors the record. But the great weight of authority is certainly the other way. 6 The affidavit of publication is usually required to be made by some specified person, for example, the printer of the paper in which the publication is made. But as it is the fact of publication, and not the proof of it, that gives jurisdiction, there can be no valid reason why proof of the fact may not be made in some other way. And in 887; Mason v. Messenger, 17 Ia. 263; Sichler v. Look, 93 Cal. 600, 608; 29 Pac. Rep. 220; Heinlen v. Heilbron, 94 Cal. 636, 641; 30 Pac. Rep. 8; In re Schlee, 65 Mich. 362; 32 N. W. Rep. 717, 723; Wilkinson v. Conaty, 65 Mich. 614; 32 N. W. Rep. 841, 846; Burr v. Seymour, 43 Minn. 401; 45 N. W. Rep. 715; Webster v. Daniel, 14 S. W. Rep. 550. 1 Britton v. Larson, 23 Neb. 806; 37 N. W. Rep. 681; Wilkinson v. Conaty, 65 Mich. 614; 32 N. W. Rep. 841, 846; Burr v. Seymour, 43 Minn. 401; 45 N. W. Rep. 715. Sichler v. Look, 93 Cal. 600, 608; 29 Pac. Rep. 220. Hackett v. Lathrop, 36 Kan. 661; 14 Pac. Rep. 220; Frisk r. Reigelman, 75 Wis. 499; 43 N. W. Rep. 1117. 'Webster v. Daniel, 14 S. W. Rep. 550, 552. 3 Burr v. Seymour, 43 Minn. 401; 45 N. W. Rep. 715. 6 Freeman on Judg., sec. 127; Galpin v. Page, 18 Wall. 350; Guaranty Trust, etc., Co. v. Buddington, 27 Fla. 233; 9 Sou. Rep. 251. 7 In re Schlee, 65 Mich. 362; 32 N. W. Rep. 717, 723. some of the statutes the right to prove it by other persons having knowlege of the fact is expressly given.1 In case of the publication of a warning order, or other notice, the order or notice takes the place of the summons and the proof of publication supplies the place of the return of the officer, and the same rule as to their legal effect generally applies.2 It has been held that if the necessary facts appear by way of recital, and not by direct averment, the affidavit is sufficient.3 Where a judgment is attacked after the lapse of many years, but slight evidence of the facts necessary to uphold it will be held to be sufficient where the original affidavits can not be found and the record is silent." Recitals in the record showing due service may, in the absence of any thing appearing to the contrary, supply the place of actual proof of publication.5 g. Personal service out of the state. As we have seen, personal service out of the state is authorized in some of the states, but such service is only allowed where constructive service against a non-resident is authorized and upon the same showing, and it is constructive service only, in its legal effect. And in some of the cases it is held that such service can not be had until an order for publication has been made. Usually the length of time after service within which to answer is the same as is allowed after publication has run its full time.8 1 Taylor v. Coots, 32 Neb. 30; 48 N. W. Rep. 964. 2 Webster v. Daniel, 14 S. W. Rep. 550. Farmers Nat. Bank v. Fonda, 65 Mich. 533; 32 N. W. Rep. 664. 5 Ante, secs. 22, 23; Davis v. Robinson, 70 Tex. 394; 7 S. W. Rep. 749; Beattie v. Wilkinson, 36 Fed. Rep. 646. 6 Ante, secs. 13, 15, 32; 1 Black on Judg., sec. 228; Williams v. Welton, 28 Ohio St. 451; Crouter v. Crouter, 17 N. Y. Sup. 758. McBlain v. McBlain, 77 Cal. 507; McBlane v. McBlane, 20 Pac. Rep. 61. 8 Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397; Crouter v. Crouter, 17 N. Y. Sup. 758. 39. PROOF OF SERVICE OF PROCESS. Proof of service of process in case of constructive service has been considered.' And attention has been given to the subject of the service.2 It remains for us to consider how the service is to be proved after it has been made. This is a subject of much less consequence than the service itself, because it is the latter that gives jurisdiction, and the proof of it, if defective, can generally be amended to conform to the facts.3 Usually, as we have seen elsewhere, the duty of serving process is imposed upon some officer, by statute, who is alone authorized to serve the same.2 Sometimes this is provided by rules of court, as in the equity rules of the federal courts. And the power to appoint some one to make service, when the officer can not act, is usually reserved to the courts." Where an officer is required to serve process, the proper proof of service is a return by him. But in many of the states authority to serve original process is given, by statute, to private individuals having certain specified qualifications. And where this is the case the usual and proper mode of proving the service is by the affidavit of such person. But these modes of proving service are not exclusive of all others as a rule. It is the fact of service that is the material thing, and if the proof can not, for any reason, be made in the mode indicated, there is no reason why the fact may not be proved by other evidence satisfactory to the court." But it is held in some of the cases that parol proof can not be heard to aid the officer's return. And this is un 1 Ante, sec. 38. 2 Ante, sec. 37. 3 Ante, sec. 38; post, sec. 40; Heinlen v. Heilbron, 94 Cal. 636, 641; 30 Pac. Rep. 8. Martin v. Gray, 142 U. S. 236; 12 Sup. Ct. Rep. 186; Barton's Suit in Eq. 69. Ante, sec. 37; Martin v. Gray, 142 U. S. 236; 12 Sup. Ct. Rep. 186. Fairfield v. Paine, 23 Me. 498; 41 Am. Dec. 357; Barton's Suit in Eq. 68. Ante, sec. 38; Perri v. Beaumont, 88 Cal. 108; 25 Pac. Rep. 1109; Heinlen v. Heilbron, 94 Cal. 636, 641; 30 Pac. Rep. 8. "Botsford v. O'Conner, 57 Ill. 78; Dickison . Dickison, 124 Ill. 483; 16 N. E. Rep. 861; Fairfield v. Paine, 23 Me. 498; 41 Am. Dec. 357. doubtedly true where the question arises on appeal, because, in such case, the record alone can be looked to in determining whether jurisdiction was obtained or not.1 Whether the proof is made by an officer's return or by the affidavit of a private individual, the facts necessary to show a valid service are the same. And the facts constituting the service must be stated so that the court may determine whether it was a sufficient service or not. A return that the writ was served, or duly served, states a mere conclusion, and is insufficient. But it has been held that a return of service without specifying how the service was made imports, and will be construed to mean, personal service.3 It is sometimes required that the affidavit of the individual shall show, in addition to the facts necessary to prove a valid service, the facts showing his competency, under the statute, to make the service. But, if personal service is shown, the failure to state facts showing the necessary qualifications of the party is an irregularity, merely, and will not make a judgment rendered upon it void. In all other respects the oath of the individual is the equivalent of the return of the officer. So that we may safely consider the requisites of the two modes of service together. Usually it is sufficient to show that the summons, or other writ, was served on the defendant, personally within the jurisdiction of the court. In the federal courts the return must show service within the district over which the court has jurisdiction. Frequently statutes require also a copy of the com 1 Doerfler v. Schmidt, 64 Cal. 265; 30 Pac. Rep. 816; Sichler v. Look, 93 Cal. 600; 29 Pac. Rep. 220. 2 Hodges v. Hodges, 6 Ia. 78; 71 Am. Dec. 388. 3 Colerick v. Hooper, 3 Ind. 316; 56 Am. Dec. 505. Doerfler v. Schmidt, 64 Cal. 265; 30 Pac. Rep. 816; Horton v. Gal lardo, 88 Cal. 581; 26 Pac. Rep. 375. Peck v. Strauss, 33 Cal. 678. 'Ante, sec. 15. Barton's Suit in Equity, 68, 69. 8 Miller v. Norfolk & N. R. Co., 41 Fed. Rep. 431; ante, secs. 13, 15. |