Dealers Lumber Corp. v. Stauffer

Horton, J. Defendants, appearing specially, ask that substituted service of the summons in this case be set aside for failure to comply with rules 20 and 49 of the Rules of Civil Practice. An order for substituted service was granted on the 12th day of January, 1926, and the order with the supporting papers was filed on the same day with the Erie county clerk. The summons, complaint, order and affidavits were affixed to the defendants’ door and copies mailed at Kenmore on January twelfth. The affidavit of service, however, was not made until July 6, 1926, and was not filed until November 9, 1926. The first objection based upon rule 20 is not well founded. Rule 20 does not refer to service of a summons. The court interprets rule 49 to mean that the actual service, that is, the affixing and mailing of the copies, must be within ten days. The part of the rule to the effect that the summons is deemed served when proof of service is filed fixes the date from which time to answer shall run, but does not make the filing of proof of service a part of the service itself. Everything has been done which is required by the rule to make the service complete when the copies have been fastened to the door and other copies mailed to the defendant. Delay in filing the proof does not make the service itself invalid. The motion should be denied, with costs.