$130. Constructive service.

In the federal courts, provision is made for service out of the jurisdiction of the court. The statutes of most of the states

Fos"The

Cas. No. 6,989. The court will not order service of a subpoena in equity on the defendant's solicitor to be a good service, except in cross suits and injunctions to stay proceedings at law on the ground of defendant's residing out of the state. Eckert v. Bauert, 4 Wash. C. C. 370, Fed. Cas. No. 4,266. See, also, Dunn v. Clarke, 8 Pet. (U. S.) 1; Pacific R. Co. v. Missouri Pac. Ry. Co., 3 Fed. 772; Crellin v. Ely, 13 Fed. 420; Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8,575; Segee v. Thomas, 3 Blatchf. 11, Fed. Cas. No. 12,633; Muhlenburg County v. Citizens' Nat. Bank, 65 Fed. 537; Abraham v. North German Fire Ins. Co., 37 Fed. 731. A similar practice would, in all probability, be allowed in serving process under bills not original, viz., bills of revivor, supplemental bills, and bills of revivor and supplement, which are nothing more than continuations of the suit upon which they operate. ter, Fed. Pr. (3d Ed.) § 96; Dunn v. Clarke, 8 Pet. (U. S.) 1. federal courts have refused to extend this class of cases so as to include a bill of interpleader, two of the defendants to which were engaged in an action between themselves in the same court, concerning the same matter, although in England such a mode of service might have been allowed." Foster, Fed. Pr. (3d Ed.) § 96, citing Herndon v. Ridgway, 17 How. (U. S.) 424. "Substituted service of a subpoena to appear and answer to a cross bill has been allowed, but not when the cross bill sought to introduce new and distinct matters into the original suit. The safer practice, when a defendant to a cross bill cannot be served personally, seems to be to procure an order staying his proceedings in the original cause until he answers the cross bill." Foster, Fed. Pr. (3d Ed.) § 96; Johnson Railroad Signal Co. v. Union Switch & Signal Co., 43 Fed. 331; Kingsbury v. Buckner, 134 U. S. 650; Rubber Co. v. Goodyear, 9 Wall. (U. S.) 788. See, also, Fidelity Trust & Safety-Vault Co. v. Mobile St. Ry. Co., 53 Fed. 850; Bowen v. Christian, 16 Fed. 730; Sawyer v. Gill, 3 Woodb. & M. 97, Fed. Cas. No. 12,399; Hunt v. Lever, 5 Ves. 147; French v. Roe, 13 Ves. 593. In Sawyer v. Sawyer, 3 Paige (N. Y.) 263, it is said: "By the practice of the English court of chancery, substituted service of the subpoena to appear and answer was sometimes permitted. Such substituted service, however, as to original proceedings, was generally, if not exclusively, confined to suits for injunctions to stay proceedings at law, and some other analogous cases. Smith v. Hibernian Mine Co., 1 Schoales & L. 238; Bond v. Newcastle, 3 Brown, Ch. 386." In nearly all, if not in all, of the classes of cases of an ancillary character, service may be, under some circumstances, on the attorney of record, or on some other agent of the defendant in such proceedings, with the same effect as though made in strict compliance with the rules relative to ordinary service.

contain provisions relative to service upon absent defendants, either by publication of notice of the pendency of the suit, or of an order directing them to appear. These various statutory provisions must be consulted when the occasion arises.2 The mode provided by statute is exclusive of any other.13

§ 131. Effect of substituted or constructive service.

Where the defendant is not within the jurisdiction of the court, process from its tribunals sent to him out of the state, and process published within it, are equally unavailing in proceedings to establish his personal liability. Such service may answer in all actions which are substantially proceedings in

44

Dunn v. Clarke, 8 Pet. (U. S.) 1; Minnesota Co. v. St. Paul Co., 2 Wall. (U. S.) 609; Hobhouse v. Courtney, 12 Sim. 140; Murray v. Vipart, 1 Phillips, 521; Adams, Eq. 324. But where there is a departure from the usual method of service, something on the record should support the judicial determination authorizing it. Gregory v. Pike, 50 U. S. App. 4, 79 Fed. 520; Murray v. Vipart, 1 Phillips, 521. The following form for an order of service taken from Curtis, Eq. Prec. 481, is referred to approvingly in Gregory v. Pike, 50 U. S. App. 4, 79 Fed. 520: "Upon motion," etc., "it was alleged that the defendant prosecutes the plaintiff at law, and cannot be found to be served with a subpoena, as by affidavit appears; and it was therefore prayed that service of a subpoena to appear to answer the plaintiff's bill upon the defendant's attorney at law be deemed good service on the defendant to compel him to appear to and answer the plaintiff's bill, which, upon hearing the said affidavit read, is ordered accordingly."

42 For the manner of serving absent defendants in the federal courts, see 1 Desty, Fed. Proc. (9th Ed.) § 25; Rev. St. U. S. § 738; 18 Stat. 472; Tug River Coal & Salt Co. v. Brigel, 31 U. S. App. 665, 67 Fed. 625; Ames v. Holderbaum, 42 Fed. 341; Bronson v. Keokuk, 2 Dill. 498, Fed. Cas. No. 1,928; Cheely v. Clayton, 110 U. S. 701; Forsyth v. Pierson, 9 Fed. 801.

43 Bracken v. Union Pac. Ry. Co., 12 U. S. App. 421, 56 Fed. 447. For the Illinois statutory provisions, see Rev. St. Ill. c. 22, §§ 12, 13. For cases construing this statute, see Hannas v. Hannas, 110 Ill. 53; Gilmore v. Sapp, 100 Ill. 297; Michael v. Mace, 137 Ill. 485, 27 N. E. 694; Connely v. Rue, 148 Ill. 207, 35 N. E. 824. provides for service on a nonresident by copy a notice of the commencement of the suit. this statute, Cloyd v. Trotter, 118 Ill. 391, 9 N. E. 507. 44 Pennoyer v. Neff, 95 U. S. 714.

Rev. St. Ill. c. 22, § 14, of the bill, together with See, for construction of

rem; but where the entire object of the action is to determine the personal rights and obligations of the defendant,—that is, where the suit is merely in personam,-constructive service in this form upon a nonresident is ineffectual for any purpose, and a personal decree cannot be had.45

45 Pennoyer v. Neff, 95 U. S. 714; Smith v. Woolfolk, 115 U. S. 143; Harkness v. Hyde, 98 U. S. 476; Empire v. Darlington, 101 U. S. 87; Arndt v. Griggs, 134 U. S. 316. A personal judgment rendered in a state court in an action upon a money demand against a nonresident of the state, without personal service of process upon him within the state, or his appearance in the action upon service by publication, is without any validity. The state, having within its territory property of nonresidents, may hold and appropriate it to satisfy the claims of its citizens against them, and its tribunals may inquire into their obligations to the extent necessary to control the disposition of the property. If nonresidents have no property in the state, there is nothing upon which the tribunals can adjudicate. Substituted service by publication, or in any other authorized form, is sufficient to inform parties of the object of proceedings taken, where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent, and proceeds upon the theory that its seizure will inform him that it is taken into the custody of the court, and that he must look to any proceedings authorized by law, upon such seizure, for its condemnation and sale. Process from the tribunals of one state cannot run into another state, and summon parties there domiciled, and publication of process or notice within the state in which the tribunal sits cannot create any greater obligation upon the nonresident to appear. Except in cases affecting the personal status of the complainant, and cases in which that mode of service may be considered to have been assented to in advance, the substituted service of process by publication allowed by statute where actions are brought against nonresidents is effectual only where, in connection with process against the person for commencing the action, property in the state is brought under the control of the court, and subjected to its disposition, by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. Pennoyer v. Neff, 95 U. S. 714. In Sawyer v. Sawyer, 3 Paige (N. Y.) 263, it was held that a bill could only be taken for confessed upon personal service of the subpoena, except in case of proceedings under the statute against absent defendants, or where the court ordered the appearance of the defendant to be entered upon his being brought into court; and that where the service of the subpoena had been upon the wife or servant of the defendant, at his house or

Service by copy of bill out of the state, as authorized by the Illinois statute, is insufficient to authorize a personal decree.46 Statutes which confer the power to proceed to an ex parte hearing are not construed with any degree of liberality in favor of him who seeks the exceptional mode of service. The party invoking their aid is required to comply with the statutory conditions and limitations.47

§ 132. Return of service.

The manner of service upon a defendant must be shown upon the return made upon the subpoena, which must show a compliance with the law concerning the serving of the process. 48 Where the statute prescribes a particular mode of serving the process, and that the officer's return shall show the precise manner of service, a return stating that the process was "served on the within-named party" is not sufficient to authorize the entry of a decree.49

place of business, the complainant must proceed by attachment or other process to compel an appearance, before the bill could be taken as confessed.

46 Cloyd v. Trotter, 118 Ill. 391, 9 N. E. 507.

47 Batt v. Procter, 45 Fed. 515; Meyer v. Kuhn, 25 U. S. App. 174, 65 Fed. 705; Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137.

48 Tompkins v. Wiltberger, 56 Ill. 385; Piggott v. Snell, 59 Ill. 106; Fischer v. Fischer, 54 Ill. 231; Wells v. Stumph, 88 Ill. 56; Foster v. Simmons, 40 Miss. 585.

49 Standley v. Arnow, 13 Fla. 361. See Bloom v. Burdick, 1 Hill (N. Y.) 136; Wilson v. Greathouse, 1 Scam. (Ill.) 174; Diltz v. Chambers, 2 G. Greene (Iowa) 479. A marshal's return on a subpoena, in equity, in a case in the federal court, which declares that it has been handed to a person at the domicile of the defendant, and who resides at said domicile, the defendant being absent, but which does not show that said person is a member of or resident in the family of defendant, is not a sufficient return of service, under United States Equity Rule 13. Von Roy v. Blackman, 3 Woods, 98, Fed. Cas. No. 16,997. See Gorham v. Peyton, 2 Scam. (Ill.) 363. Where the law directs that a copy of the bill shall be delivered to defendant by the officer serving the subpoena, which delivery shall be indorsed on the back of the subpoena, it must appear by the return that the copy has been delivered, before the bill can be taken for confessed. Ayers v. Scott, Sneed (Ky.) 162.

§ 132a. Illustration of form of return.

[In the federal court:]

United States Marshal's Office,

District of

day of day of said in said district, an at

I hereby certify that I received the within writ on the 19, and personally served the same on the 19, on, by delivering to and leaving with defendant named therein, at the city of tested copy thereof.

19-.

N. O.,

United States Marshal,
By -

Deputy.50

§ 133. Acceptance of service.

In some jurisdictions, statutory provisions relative to the acceptance of service of process are found. Such statutory provisions must be complied with, in order to render unnecessary the service of process by a properly constituted officer. In the absence of any statute authorizing acceptance of service of process, it seems that the defendant has the right to accept service of process; and such acceptance of service, when duly proven, is equivalent to service of the subpoena by the proper officer:51 Proof of the genuineness of the acceptance of service is required to support a decree pro confesso.52 If the acceptance is not made by the defendant personally, the party so doing should be duly authorized.5 It is held that a recital in the decree

53

For cases involving returns, see McClaskey v. Barr, 45 Fed. 151; Hill v. Gordon, 45 Fed. 276; Hochlander v. Hochlander, 73 Ill. 618; Townsend v. Griggs, 2 Scam. (Ill.) 365.

50 4 Desty, Fed. Proc. (9th Ed.) 656.

51 Banks v. Banks, 31 Ill. 162; Tuskaloosa Wharf Co. v. City of Tuskaloosa, 38 Ala. 514. The following indorsement, signed by the defendant, on a summons, recited by the decree to have been made by the defendant, was held to be sufficient: "I acknowledge service of the within summons upon me as required by law, this 9th day of May, 1861, by the same being read to me, and receiving a copy of the same." Banks v. Banks, 31 Ill. 162.

52 O'Neal v. Garrett, 3 Ala. 276; Norwood v. Riddle, 1 Ala. 195. 63 Finney v. Clark, 86 Va. 354, 10 S. E. 569; Bryn Mawr Nat. Bank v. James, 152 Pa. 364, 25 Atl. 823.