Stevenson v. Hargraves

JENNINGS, District Judge. The plaintiff herein relied upon certain alleged defects in every step taken after the issuance of summons, which alleged defects are stated to be fatal to the jurisdiction. I will notice only a few of those defects, as the points noticed are sufficient to dispose of the matter. The Affidavit for Publication of Summons. Section 878 of our Code provides that a summons must be served by delivering a copy thereof “in all cases, to the defendant personally, or, if he be not found, to some person of the family above the age of 14 years, at the dwelling house or usual place of abode of the defendant.” It will be seen that, if the defendant can be found, then the service is not to be made by leaving the summons with some person of the family above the age of 14 years, but, if he cannot be found, then it may be so' left. Section 879 is in substance and effect that there can be no service of summons by publication, unless it be a fact that the “service of the summons cannot be made as prescribed in section 878.” [660] The affidavit which is the foundation of the order for the publication of summons shows on its face that it is fatally defective. It states “that service of summons cannot be made upon defendant in accordance with the provisions of section 878, Compiled Laws of Alaska,” and if the affidavit stopped there the fatal defect mentioned would not appear; but the very next clause shows that what the affidavit maker had in mind as the reason why the service could not be had as provided in section 878 was only the reason that defendant is not within the territory of Alaska and after due and diligent search cannot be found therein. The- reason set forth is plainly insufficient. It may be that Stevenson was not within the territory of Alaska at that time, and that after due and diligent search he could not be found therein; but there is no explanation as to why the summons was not left with “some person of the family above the age of 14 years at the dwelling house or usual place of abode of the defendant.” It is not stated that the defendant is not a resident of Skagway, but simply that he is not within the territory of Alaska and after due and diligent search cannot be found therein. There is many a resident of Alaska who is not at present within the territory of Alaska, and whom a due and diligent search would fail to find, and yet one cannot proceed by publication against him. The thing to do is to leave the summons with some person of the family above the age of 14 years, at the dwelling house or usual place of abode of the defendant. If summons cannot be served in either one of the two ways pointed out by the last clause of section 878, then under certain conditions the publication of the summons may be resorted to. The affidavit for summons by publication is further fatally defective, in that there is no showing made that the publication of summons is sought in any one of the cases specified in subdivisions numbered 1, 2, 3, 4, 5, and 6 of section 879. When the publication of summons is sought, it is not sufficient only that “service of the summons cannot be made as prescribed in the last preceding section and that the defendant after due diligence cannot be found within the district.” It must also appear to the satisfaction of the court or judge that the publication is sought in “one of the following cases, viz.” (see section 879). And if it does not appear that it is sought in any one of said cases, there is no showing made that will justify a summons by publication. [661] It is true that the order of publication recites that it satisfactorily appears to the justice from the affidavit of W. B. Hargraves “that the defendant resides without the territory of Alaska”; but an inspection of said affidavit plainly' shows that no such thing does appear. The Summons for Publication. This, too, is fatally defective, so far as being a support for the judgment. The published summons states that in default of answer the plaintiff will take judgment for the sum of $975, and will apply to the court for the relief set out in the complaint filed herein. Now, the only relief “set out in the complaint filed herein” is a money judgment, personal judgment, for $975. Such a judgment, rendered without statutory service of summons, would be absolutely void. It may be presumed that Stevenson, seeing the published summons and the complaint and knowing the law, might have made no appearance whatsoever because of his knowledge of the futility of such a judgment. But he cannot possibly have known that the justice was going to render a judgment foreclosing an attachment lien, or even that any property had ever been attached. He cannot be charged with notice that anything except a personal judgment was going to be taken against him. Ballew v. Young, 24 Okl. 182, 103 Pac. 624, 23 L. R. A. (N. S.) 1084. The Order for Publication. The order, also, is fatally defective, because it is not according to statute, in that it is nowhere found as a fact, or stated to be found as a fact, that it appears that the residence of defendant is neither known nor can with reasonable diligence be ascertained, and unless such facts appear the order for publication must “direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to defendant at his place of residence.” This is not done in this order for publication. “But when the order of the court omits to direct a deposit in the post office, and there is nothing in the record, or in the facts recited in the order, to excuse such omission, the requirements of the statute are not complied with by mere publication. The statute contemplates, if possible, that actual notice shall be had of the pendency of the action. Deposit in the post office, directed to the residence of the [662] deiendant, would be mueb more likely to notify bim of tbe pendency of tbe action, than publication of tbe summons in a newspaper, however general its circulation.” Odell v. Campbell, 9 Or. 303. Resort to Hargraves’ affidavit will not help the matter. That affidavit merely says that affiant does not know Stevenson’s address and cannot ascertain it. “Wben * * * constructive service of process by publication is substituted in place of personal citation, and tbe court upon sucb service is authorized to proceed against tbe person of an absent party, not a citizen of the state, nor found within it, every principle of justice exacts a strict and literal compliance with the statutory provisions.” Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959; Odell v. Campbell, 9 Or. 304. Proof of Publication. Here, too, there is a fatal defect. By the statute the proof of publication can be made only by the affidavit “of the printer, or of his foreman, or of his principal clerk.” C. L. § 884. J. M. Keller, who made the affidavit of publication, swears that he is the business manager of such newspaper. One might be the business manager of a newspaper, and yet be neither “printer,” nor “foreman,” nor “principal clerk.” This is insufficient. Odell v. Campbell, 9 Or. 307. Judgment. This, too, is totally void. It will be seen that it is a purely personal judgment. Such a judgment, if good at all, is not necessarily to be satisfied out of any attached property, but is a general charge against any nonexempt property of defendant Stevenson. Such a judgment cannot be rendered without service as required by statute; it cannot be rendered on service by publication. This judgment cannot be satisfied out of the attached property, if, indeed, any property was attached, for the reason that the failure to include in the judgment an order for the sale of attached property releases the attached property from the lien of the attachment. Section 979, C. L. 1913; Love v. Pavlovich, 222 Fed. 842, 138 C. C. A. 268. The judgment, therefore, is not good, either as a personal judgment or a judgment against attached property. The writ of review is sustained, and the judgment is annulled.