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a. Affidavits to be filed.-The affidavits on which the order is obtained should be left with the judge, or filed within five days (Vernam v. Holbrook, 5 How. 3; Rule 4). But they may be ordered to be filed nunc pro tune (id.)

¿. Deposit in post-office.-A copy of the summons and complaint is to be deposited forthwith in the post-office; and where the order for publication was made on the 24th of October, and the copy summons, &c., was not deposited until the 9th of November following, it was held not to be a deposit forthwith, and that a judgment subsequently entered on default of the defendant to answer was irregular (Back v. Crussell, 2 Abb. 386). Where the order was made on the 18th, and the deposit made on the 22d of the same month, held regular (Van Wyck v. Hardy, 11 Abb. 474; 20 How. 222), the delay being accounted for. Forthwith means "reasonable dispatch" (id.) Postage to be prepaid, § 411, post.

c. Publication.-The complaint need not be published (Anon. 1 Code Rep. 102; 3 How. 293); a publication of the summons for seventy days held to be a publication for ten weeks (The People v. Gray,10 Abb. 468); a publication for thirty-nine days, held a publication for six weeks (Olcott v. Robinson, 21 N. Y. 150; and see § 425).

d. As to notices required to be published in Hamilton county, see Laws 1860, ch. 297; id. ch. 95; Laws 1866, ch. 690; Laws 1867, ch. 162.

e. Filing complaint.-It has been held that the service by publication is insufficient, unless the complaint be filed before publication, and that the summons as published must state the time and place of filing. A judgment entered upon a service thus defective is a nullity (Kendall v. Washburn, 14 How. 380; Titus v. Relyea, 16 id, 371; 8 Abb. 177). But in Waffle v. Goble, 53 Barb. 517, it was held that filing the complaint was not necessary to the regularity of the judgment, where after the order for publication the summons was personally served out of the State.

f. Where the complaint was filed on the 22d of September, and the summons, dated and published on the 23d of September, stated, the complaint has this day been filed,-held to be a sufficient compliance with the statute (Jacquerson v. Van Erben, 2 Abb. 315).

9. Judgment.—Where, after an order for service by publication, judgment was entered, and it appeared on the face of the record that there had not been a six weeks' publication of the summons, and there was no proof of a deposit of copies of the summons and complaint in the post-office, nor of personal service out of the State, nor did the record contain the affidavit on which the order for service was granted,-held that the record did not show jurisdiction of the person, and the judgment was set aside (Hallett v. Righters, 13 How. 43). See note to section 246, post. A judgment obtained on a service by publication has no binding force in personam, and cannot be sued upon (Kane v. Cook, 8 Cal. R. 449; Force v. Gower, 23 How. 294; Fiske v. Anderson, 33 Barb. 71; 12 Abb. 8). See Rule 25, Supreme Court.

h. Admitting defendant to defend after judgment does not open the judgment, nor stay the proceedings upon the execution (Carswell v. N ville, 12 How 445). As to terms upon which admitted, see Hartwell v. White, 9 Paige, 368.

§ 136. (Am'd 1849, 1851, 1866). Joint and several debtors— Partners.

Where the action is against two or more defendants, and the summons is served on one or more of them, but not on all of them, the plaintiff may proceed as follows :—

1. If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless

the court otherwise direct, and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants served; or,

2. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants.

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them alone.

4. If the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action.

a. Where in an action against two defendants, as joint debtors, the summons is served on one only, who appears, no appearance being entered for the other defendant, judgment should be entered against both defendants (N. B'k of Ky. v. Wright, 5 Rob. 604; Stannard v. Mattice, 7 How. 43; Lahey v. Kingon, 13 Abb. 192; see Brown v. Richardson, 4 Rob. 603); and it would in such a case be irregular to enter the judgment against the defendant served only (Niles v. Battershall, 2 Rob. 146). But such a judgment is a judgment in form only, as against the defendants not served with process (Foster v. Wood, 1 Abb. N. S. 150; 30 How. 284). After such a judgment, a second action may be brought against both defendants, alleging the recovery of the judgment, serving process on the defendant not before served and a judgment taken against him (Dean v. Eldridge, 29 How. 218; see Johnson v. Smith, 23 How. 444; Betts v. Hillman, 15 Abb. 184; Benson v. Paine, 9 Abb. 28).

b. Heirs.-The several heirs of a person deceased, although they must be sued in one action for the debts of the ancestor to the extent of the real estate descended, are not such joint debtors as that on a service on one a judgment in form can be entered against the others (Kellogg v. Olmstead, 6 How. 487).

c. Partners.-"Defendants severally liable," in sub. 2, construed as meaning defendants liable separately from the defendants not served, though jointly as respects each other; so that in an action against three persons, as partners, one not being served with the summons, nor appearing, the plaintiff is entitled to judgment against the other two, upon evidence that they alone constituted the partnership (Pruyn v. Black, 21 N. Y. 300). In such a case to entitle the plaintiff to a judgment against the defendant not served, it must be shown he was a partner (Crandall v. Beach, 7 How. 271).

d. When one partner colludes with a creditor of the firm without the

knowledge of his co-partner, to have a judgment rendered against the property of the firm, by a service on such colluding partner alone, the court will, on motion of the partner who has been deceived, open the judgment (Griswold v. Griswold, 14 How. 446; Everson v. Gehrman, 10 id. 301); and where the service was on one defendant only, who made default, and judgment was entered in form against all, the court subsequently, upon the application of the defendant not served, permitted him to come in and defend (Ford v. Whitridge, 9 Abb. 416).

a. In an action on contract against two defendants as partners, if the complaint is served on one only, the other may appear voluntarily (Wellington v. Classon, 9 Abb. 175; 18 How. 10; see Waterbury Leather Co. v. Krause, 9 Abb. 175, n.)

See notes to sections 120, 289, 291, 274 and 375.

§ 137. When service complete.

In the cases mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication.

b. Where an order for publication has been made, and the defendant is personally served with summons out of the State, he has twenty days' time to answer, from the day of the personal service out of the State (Dykers v. Woodward, 7 How. 313, approved G. G. Barnard, J.; Sherman v. Strakosh, Transcript, 3 March, 1865; see contra Tomlinson v. Van Vechten, 6 How. 199; Abrahams v. Mitchell, 8 Abb. 123). Where the summons has been published, the time to answer does not commence to run until the completion of the six weeks of publication (Richardson v. Bates, 23 How. 516; Brod v. Heyman, 3 Abb. N. S. 396).

c. After commencing to publish the summons, the defendants served a notice of appearance, and demanded a copy of the complaint; plaintiffs, within twenty days after such demand, and without serving any copy complaint, and giving notice to the defendants, entered judgment, as for want of an answer, held irregular (Downer v. Mellen, 50 Barb. 232).

§ 138. (Am'd 1851.) Proof of service.

Proof of the service of the summons and of the complaint or notice, if any, accompanying the same, must be as follows:

1. If served by the sheriff, his certificate thereof; or, 2. If by any other person, his affidavit thereof; or,

3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same, and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited; or,

4. The written admission of the defendant.

In case of service otherwise than by publication, the certificate, affidavit, or admission, must state the time and place of the service.

d. Sheriff's certificate.—Where the proof of service is the sheriff's certificate, it should state or refer to the name of the cause, and that the sum

mons served by him was in that cause; and where a sheriff's certificate stated that he served on the defendant a copy of a summons and complaint, but it did not appear that it was the summons and complaint in the action then before the court, it was held not sufficient proof of service (Litchfield v. Burwell, 5 How. 341). The certificate of a sheriff of a county in another State is of no greater effect in this State than the certificate of a private individual. He should make affidavit of the service as any other individual would be required to do (Thurston v. King, 1 Abb. 126; Morrell v. Kimball, 4 id. 352). Where a sheriff serves the summons out of his own county, the proof of service must be by affidavit (Farmer's Loan Co. v. Dickson, 9 Abb. 61; 17 How. 477). A certificate signed " J. C. Butler, under-sheriff," was held to be no proof of service. The return of a deputy-sheriff in his own name is a nullity; the return should be in the name of the sheriff (Joyce v. Joyce, 5 Cal. R. 449). A sheriff's certificate of the service of a summons does not lose its force by lapse of time, or by being previously used for any other purpose; and although it may have been used in reference to a judgment which is afterwards vacated, it continues to be proof of the service, and may be used on a subsequent application for judgment (Brien v. Casey, 2 Abb. 416).

a. Where the proof of service is defective, it may be supplied and filed nunc pro tunc (Farmer's Loan Co. v. Dickson, supra).

b. Disputing the Service.-The return of a sheriff, or an affidavit of a person acting in his place, or the affidavit of any other person, of the service of a summons, is not conclusive upon the defendant; he may disprove such alleged service, on motion to set the proceedings aside (Van Rensselaer v. Chadwick, 7 How. 297; Litchfield v. Buricell, 5 id. 341; Wallis v. Lott, 15 id. 567, and see Bulkley v. Bulkley, 6 Abb. 307; Moulton v. de ma Carty, 6 Rob. 470). Where, on a motion to set aside a judgment taken for want of an answer on the ground of a defect in the service of the summons, it appears that the defendant had improperly endeavored to avoid service of the summons, the judgment will not be set aside unless on satisfactory evidence that the summons had not come to the defendant's knowledge (Southwell v. Marryatt, 1 Abb. 218). Nor will the court set aside a judgment for non-service of the summons, when it appears that although the defendant knew service had been erroneously made on his foreman for him, and that the plaintiff was proceeding on such service as a regular service, yet did not make his motion to set aside until supplementary proceedings were resorted to (Hilton v. Thurston, ib. 318). The objection that a summons was not properly served is not available in an answer or demurrer; the remedy is by motion to set aside the service and proceedings thereon as irregular (Norris v. Hope Mut. Ins. Comp. 8 Barb. 541). Proof of service on conflicting affidavits (see Hunter v. Lester, 10 Abb. 266).

c. Publication, how proved.-In case of publication the affidavit is to be made by the printer, his foreman or principal clerk; but it seems if the affidavit is made by the publisher of the paper it is sufficient (Bunce v. Reed, 16 Barb. 350).

d. Defendant's admission.-Where the proof of service is an admission by the defendant, the admission must be verified and identified, so as to satisfy the court that the admission is indeed signed by the defendant, or with his assent (2 Hill, 369; Litchfield v. Burwell, 5 How. 342; Re Gibson, 5 English's [Ark.] R. 572; Welch v. Walker, 4 Porter, 120; Norwood v. Riddle, 9 id. 426). An admission of service of the summons and complaint, not stating the mode in which the service was made, is not sufficient. The admission must state that the service was personal, by the delivery of a copy thereof to him (Read v. French, 28 N. Y. 285).

e. Fees for serving summons.-For serving a summons the sheriff is entitled to fifty cents for each defendant served. He is also entitled to six cents per mile for going only, to be computed from the court-house. But this fee only applies to the process itself, and not to the number of defendants named, or who may be served. But one travel fee can be charged on the

same process. For the certificate required by section 138, no compensation is provided by that name, *** but it may be regarded as a substitute for a return, and the officer entitled to the fee allowed for such service (12 1-2 cents) (Benedict v. Warriner, 14 How. 570).

a. No fee for serving the summons and complaint is taxable, unless the service be made by the sheriff; and then it is taxable as a sheriff's fee (Whipple v. Williams, 4 How. 30). But where the service is by any person other than the sheriff, then nothing more can be allowed than a reasonable compensation for the labor in making the service; there can be no allowance for constructive traveling, and the affidavit should show the reasonableness of the charge. Thus, where $65 were charged for the service of the summons on forty-two defendants, by a person not the sheriff, the charge being in amount equal to what would have been the legal fees of the sheriff for such services -the affidavit in respect to this item stated the expenses for services on said defendants were necessarily incurred, according to the registry kept by deponent, and according to his best knowledge and belief,-the charge was disallowed (Case v. Price, 17 How. 348).

See note to section 134, and Rule 18.

§ 139. (Am'd 1851.) Jurisdiction. Appearance.

From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.

b. Effect of appearance.—A defendant may appear at any time before judgment is actually entered (Abbott v. Smith, How. 463; Baxter v. Arnold, 9 How. 447). A voluntary and general appearance, besides being equivalent to a personal service of the summons, is a waiver of all defects in the summons or previous proceedings (see Webb v. Mott, 6 How. 440; Dix v. Palmer, 5 ib. 233; Dole v. Manley, 11 ib. 138; and notes to sections 128 and 129; Hyde v. Patterson, 1 Abb. 248; Bierce v. Smith, 2 id. 411). It does not authorize a judgment for want of an answer without proof of due service (Macomber v. The Mayor, 17 Abb. 36). Where the defects in the summons or proceedings, prior to appearance, are not made apparent until after the notice of appearance is served, then the appearance is no waiver (Voorhies v. Schofield, How. 51; Shafer v. Humphrey, 15 id. 564). An appearance by putting in an answer protesting against the jurisdiction is not such an appearance as waives the objection to the jurisdiction (Sullivan v. Frazee, 4 Rob. 616; Mahaney v. Penman, 1 Abb. 34; 4 Duer, 603; Hewitt v. Howell, 8 How. 347).

c. Voluntary appearance.-It is never the case in any court that a party uninvited or unwelcome could intrude himself upon the court and the plaintiff, unless he had some right to protect which rendered such appearance necessary; and where one of several persons named as defendants in the summons, but on whom no copy had been served, gave a notice of appearance and demanded a copy of the complaint, and no copy of complaint being served, moved to dismiss the action, it was held he had no right to appear, or move for a dismissal of the action (Tracy v. Reynolds, 7 How. 327); but the superior court has held that a person named as defendant and against whom a judgment is prayed, but on whom no summons has been served, has a right to appear and answer (Higgins v. Rockwell, 2 Duer, 650). See note to § 136, ante p. 140 c.