$56. application, nor can with reasonable diligence be ascer- Oct. 11, 1862, tained by him. When publication is ordered, personal Manner of service of a copy of the summons and complaint out of publication. the state shall be equivalent to publication and deposit 9 Or. 298. in the post-office. In either case, the defendant shall 11 Or. 447. appear and answer by the first day of the term following the expiration of the time prescribed in the order for publication, and if he does not, judgment may be taken against him for want thereof. In case of personal service out of the state, the summons shall specify the time prescribed in the order for publication. Manner of service by publication. See § 56 [55], ante. Strict compliance with the statute is requisite to make a valid service of summons by publication: Israel v. Arthur, 7 Col. 5; Brown v. Tucker, 7 Id. 30; Victor Mill & M. Co. v. Justice's Court, 18 Nev. 21. See this last decision for a statement of the necessity of setting forth in the affidavit for order of publication whether or not the defendant's residence is known. Service without the mailing of a copy of the summons is insufficient: Victor M. & M. Co. v. Justice's Court, supra; Wilson v. Basket, 47 Miss. 637; Odell v. Campbell, 9 Or. 298. Where mailing is required, sending to the post-office of defendant is not a sending to defendant at his post-office: Holly v. Bass, 63 Ala. 391; Scorpion S. M. Co. v. Marsano, The publication must be for the full Publishing summons against wrong person or against a person under the wrong name, as where the wrong initials of the name are used, gives no jurisdiction: Fanning v. Krapf, 61 Iowa, 417. An order for publication is satisfied by the publication of a copy substantially correct, and omission of unnecessary words will not vitiate it: Van Wyck v. Hardy, 4 Abb. App. Dec. 496. $57. When defend allowed to judgment. § 58. [57.] The defendant against whom publication Oct. 11, 1862, is ordered, or his personal representatives, on application and sufficient cause shown, at any time before judgment, ant may be shall be allowed to defend the action; and the defendant defend after against whom publication is ordered, or his representatives, may in like manner, upon good cause shown. and upon such terms as may be proper, be allowed to defend after judgment, and within one year after the entry of such judgment on such terms as may be just; and if the defense be successful, and the judgment or any part thereof have been collected or otherwise enforced, such restitution may thereupon be compelled as the court shall direct. But the title to property sold Oct. 11, 1862, $57. Oct. 11, 1862, $58. When sum not found. upon execution issued on such judgment, to a purchaser in good faith, shall not be thereby affected. Defending after judgment. An allegation that plaintiff did not try to find defendant's address may be considered upon a motion to open the decree: Smith v. Smith, 3 Or. 363. § 59. [58.] Whenever it shall appear by the return of the sheriff, his deputy, or the person appointed to serve mons returned a summons, that the defendant is not found, the plaintiff may deliver another summons to be served, and so on, until service be had; or the plaintiff may proceed by publication as in this title provided, at his election. 1 Or. 273. Oct. 11, 1862, $ 59. When summons not served on all of defendants. 13 Or. 214. 10 Or. 49. 13 Or. 30. 14 Or. 32. § 60. [59.] When the action is against two or more defendants, and the summons is served on one or more, but not all of them, the plaintiff may proceed as follows: 1. If the action be against defendants jointly indebted upon a contract, he may proceed against the defendants 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 sepa rate property of the defendant served, and if they are subject to arrest, against the persons of the defendants. served; or, 2. If the action be against the 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. Judgment against several af- fense the partner not served might have: Bruen v. Bohee, 4 Denio, 56; Carmen v. Townsend, 6 Wend. 206; Oakley v. Aspinwall, 4 N. Y. 521; Wood v. Watkinson, 17 Conn. 500; S. C., 44 Am. Dec. 562. In some states which have adopted statutes similar to the Oregon statute, to the effect that judgments may be entered in form against all of the debtors on a joint contract, but that execution can only issue against the separate property of those served, and the joint property of all of them, the courts have upheld the statutes: Johnson v. Lough, 22 Minn. 203; Whitem v. Shiverick, 3 Nev. 228; Harper v. Brink, 24 N. J. L. 333; Lahey v. Kingon, 13 Abb. Pr. 192; Guimond v. Nast, 44 Tex. 114. In Richardson v. Fuller, 2 Or. 179, it was held that one partner, by confessing judgment, could bind, not only his own property, but the interest in the firm of the unserved partner. In California, under a statute al- Oct. 11, 1862, lowing joint property of all to be $59. taken, under execution on service of one, it is held that the judgment is void, and the statute unconstitutional as to one not served: Tay v. Hawley, 39 Cal. 95; Treat v. McCall, 10 Id. 511; Bowen v. May, 12 Id. 349. Where the action is upon a contract, joint and several, a several judgment would be proper, as the defendants might have been sued alone in such case: Sears v. McGrew, 10 Or. 48. § 61. [60.] Proof of the service of the summons, or Nov. 24, 1885, of the deposit thereof, in the post-office, shall be as fol- Laws special lows: 1. If the service or deposit in the post-office be by the sheriff or his deputy, or by a constable or marshal, the certificate of such officer; 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 his principal clerk, showing the same; 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 service; and in case of deposit in the postoffice, the time and place thereof. Proof of service or publication. -Proof of service can only be made by one of the class of persons named in the statute: Odell v. Campbell, 9 Or. 29S. A return by the sheriff must be in the name of the sheriff. Where the return of the service of the summons issued in an action for taxes was signed "Elijah T. Cole, D. S.," it was held that this return was insufficient to give the court jurisdiction, or to authorize it to enter a judgment by default: Joyce v. Joyce, 5 Cal. 449; Rowley v. Howard, 23 Id. 403; and see Lewes v. Thompson, 3 Id. 266. Proof of publication can be made only by a person holding the position of printer, or foreman, or his principal clerk: Odell v. Campbell, 9 Or. 298. In an affidavit of publication deponent described himself as "principal clerk," etc., and then the affida It vit proceeded, 'deposes," etc. An acknowledgment of service is session of 1885, p. 11. Proof of service of rub. Oct. 11, 1862, $61. When court diction. Appearance. the absence of such evidence the court could not notice them: Alderson v. V. Bell, 9 Id. 321; Litchfield v. Burwell, 5 How. Pr. 346. Where S. & B. admitted "due service," in an action against them and others, it was held that the court thereby acquired jurisdiction of them, and as to them the judgment was valid. It does not ap pear that the signatures were verified: Sharp v. Brunnings, 35 Cal. 528. An acceptance of service out of the state is of no avail unless there is an appearance: Morrell v. Kimball, 4 Abb. Pr. 352; Goldman v. Monds, 1 City Ct. Rec. 97; Litchfield v. Burwell, 5 How. Pr. 341; Scott v. Noble, 72 Pa. St. 115; S. C., 13 Am. Rep. 663. § 62. [61.] From the time of the service of the summons, or the allowance of a provisional remedy, the court acquires juris- shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of the defendant shall be equivalent to personal service of the summons upon him. 10 Or. 493. When court acquires jurisdiction: See notes to § 55 [54], ante. From the time of service of summons in a civil action the court is deemed to have acquired jurisdiction and to have power to control all subsequent proceedings: Woodward v. Baker, 10 Or. 49. Therefore, if a party properly served with process leaves the state thereafter, and without answering, the court may properly enter his default: Hancock v. Pico, 40 Cal. 153. Appearance-Effect to waive service of summons. It is a general rule that if jurisdiction is not conferred upon a tribunal by law, it cannot be conferred by consent of the parties: Michales v. Hine, 3 Iowa, 470. Therefore, when want of jurisdiction over the subject-matter of the action appears from the record, the defect cannot be supplied by submission of the party: Perkins v. Perkins, 7 Conn. 558; S. C., 18 Am. Dec. 121. But where a court has jurisdiction of the subject-matter of an action, a voluntary general appearance waives all defects in process or in the service thereof, and confers jurisdiction over the parties: Gracie v. Palmer, 8 Wheat. 699; White v. N. W. Stage Co., 5 Or. 99; Hayes v. Shattuck, 21 Cal. 51; Desmond v. Superior Court, 59 Id. 274; New York & B. Mfg. Co. v. Gill, 7 Col. 100; Gardner v. Teller, 2 How. Pr. 241; Mulkins v. Clark, 3 Id. 27; Dix v. Palmer, 5 Id. 233; People v. Baucker, 5 N. Y. 106; In re Macauley, 27 Hun, 577; Crystal v. Kelly, 88 N. Y. 285; Catlin v. Rick, 91 Id. 668. But an appearance to confer jurisdiction must be clearly a general and not a special appearance: Muller v. Higgins, 13 Abb. Pr. 297. An appearance of a party in a cause, save for the purpose of taking advantage of a want of jurisdiction, is a general appearance: Foote v. Richmond, 42 Cal. 443; Aultman v. Steinau, 8 Nev. 112; Bank of Valley v. Bank of Berkeley, 3 W. Va. 386; Coad v. Coad, 41 Wis. 26. Within the meaning of a general appearance comes any motion which calls into action the powers of the court for any purpose except to decide upon its own jurisdiction: Wood v. Young, 38 Iowa, 106; Cropsey v. Wiggenhorn, 3 Neb. 116; that is to say, any motion which asks for relief which can be granted only on the hypothesis that the court has jurisdiction of the cause and of the person: Coad v. Coad, 41 Wis. 26. Coming in to move for a continuance has been held a general apppearance: Sargent v. Flaid, 90 Ind. 501; Stockdale v. Buckingham, 11 Iowa, 45; Harvey v. Skipwith, 16 Gratt. 410; Marye v. Strouse, 5 Fed. Rep. 494 (Nev.). So with a motion for a change of venue: Taylor v. Atlantic & P. R. R. Co., 68 Mo. 397; the filing of a demurrer: Kegg v. Welden, 10 Ind. 550; Slauter v. Hollowell, 90 Id. 286; plea in bar: Ponder v. Moseley, 2 Fla. 207; S. C., 48 Am. Dec. 194; plea of the statute of limitations: Miller v. Whitehead, 66 Ga. 283; or plea or answer on the merits: Mix v. People, 106 Ill. 425; Frew v. Taylor, 106 Id. 159; Carroll v. Lee, 3 Gill & J. 504; S. C., 22 Am. Dec. 350; McKee v. Metran, 31 Minn. 429. An appearance and motion to set aside execution and judgment will cure a defect of non-service of summons: An derson v. Colburn, 27 Miss. 558. A party by taking an appeal submits himself to the jurisdiction, and waives error in return or service of process, and likewise with one prosecuting a writ of error: Culton v. Commonwealth, 9 Bush, 703; Seurer v. Horst, 31 Minn. 479; Mobile & O. R. R. Co. v. Dale, 61 Miss. 206; Berkeley v. Kobes, 13 Mo. App. 502; Heine v. Morrison, 13 Id. 590; Shawany v. Love, 15 Neb. 142; Sawlins v. Sackey, 6 Mon. 70. Special appearance. A special appearance is an appearance solely for the purpose of testing the jurisdiction: Baily v. Sehrada, 34 Ind. 261; Huff v. Shepard, 58 Mo. 246. Where a party appears specially to object to the jurisdiction, he should confine his motion to that question alone; he may test the question of jurisdiction, but thereafter must either go to trial or quit the field altogether; he cannot occupy an ambiguous attitude: Tower v. Moore, 52 Mo. 120; Porter v. Chicago etc. R'y Co., 1 Neb. 15. If a person specially appear, his withdrawal without pleading to the merits does not leave him subject to the jurisdiction of the court, but leaves the matter as though there had been no appearance: Graham v. Spencer, 14 Fed. Rep. 603. An appearance for the sole purpose of moving to quash a writ or summons or the service thereof is a special appearance, and will not waive service of process, or defects in the writ, or service or return thereof: Lung Chung v. Northern Pacific R. R. Co., 10 Saw. 17; Lyman v. Milton, 44 Cal. 635; Sandar v. Fleming, 47 Id. 615; Kent v. West, 50 Id. 185; Southern Pacific Ry Co. v. Kern Co., 59 Id. 471. So with a motion to dismiss for want of issuance of summons within the proper time: Linden G. M. Co. v. Sheplar, 53 Id. 245; or because of want of service within the proper time: Nye v. Liscomber, 26 Pick. 266; or because of objection to the manner of service of process: Crary v. Barbur, 1 Col. 174. A petition for removal of the cause to a federal court is not a general appearance: Small v. Montgomery, 17 Fed. Rep. 865; nor is an appearance for the purpose of setting aside a default: Gray v. Hawes, 8 Cal. 562; or assessing damages: Briggs v. Sneghan, 45 Ind. 18. Who may appear. Any person named as defendant may voluntarily Oct. 11, 1862, appear: Higgin v. Rockwell, 2 Duer, §61. 652; either at law or in equity: Nelson v. Moon, 3 McLean, 320. A person may appear by attorney, and when he is so represented the court will presume that such attorney was authorized to appear for the party, but the party may appear and prove the contrary, and if proved the appearance will not confer jurisdiction: Graham v. Spencer, 14 Fed. Rep. 603; Clark v. Willett, 35 Cal. 540. Non-residents may appear so as to confer jurisdiction: McLean v. Lafayette Bank, 3 McLean, 587. One privileged from service of process may appear generally, and thereby waive his privilege, and pleading to the merits is such a waiver: Harrison v. Harrison, 20 Ala. 629; S. C., 56 Am. Dec. 227. The voluntary appearance of the state confers jurisdiction: Clark v. Bernard, 108 U.S. 436; and so of the United States: Johnson v. Stimmel, 89 N. Y. 117. Corporations may appear as well as individuals: Attorney-Gen. v. Guardian M. L. I. Co., 77 Id. 274. Infants or lunatics may probably appear by their guardians, or guardians ad liten. Effect of waiving process by appearance. A general appearance confers such a jurisdiction that it matters not whether the summons issued was good, or whether any process was issued: Baldwin v. Murphy, 87 Ill. 489; Wasson v. Cone, 86 Id. 47. The appearance will have no retrospective effect as a waiver, but will operate only from the time it is made. Thus, it will not waive the bar of the statute of limitations which attached before the appearance: Etheridge v. Woodley, 83 N. C. 13; nor will it waive time to plead: Harker v. Fahie, 2 Or. 89; Maud v. Wear, 55 Cal. 25. An Withdrawal of appearance. appearance can only be withdrawn by permission of a court exercising a sound legal discretion: Rhode Island v. Massachusetts, 12 Pet. 760; New Albany & S. R'y Co. v. Combs, 13 Ind. 490; Creighton v. Kerr, 20 Wall. 13. Allowing the appearance to be withdrawn operates to allow the plea of the party to be also withdrawn: Creighton v. Kerr, supra; but merely allowing a plea to be withdrawn does not allow the withdrawal of the appearance: Id.; Eldred v. Bank, 17 Id. 551. |