with the statute; as the first publication was intended to be full three weeks prior to the meeting. But where "sixty days' notice" was required to be published of calls for installments of stock in a corporation, one insertion, sixty days prior to the day fixed was held sufficient."

$1133. Mortgagee's Sales.-There are also sales made in pursuance of published notice, where the publication is made according to the terms of a contract between the parties interested, as a mortgage with power of sale without judicial foreclosure, or deed of trust in the nature of a mortgage with power of sale. The time and place of sale, as well as the time for which the notice shall be published, being fully provided for in the instrument, it is only requisite that the provisions of the contract shall be complied with, in order to render the sale valid and binding.

There are other matters

§ 1134. Matters Noticed Elsewhere. which may be brought to the notice of parties, by publication in a newspaper, by which their rights or liabilities may be enlarged or restricted with reference to their transactions with those giving the notice; as a dissolution of partnership, regulations by common carriers, restricting their liabilities as such, and the like; but these notices when published, must be satisfactorily brought home to the parties to be affected, by other evidence than the mere fact of publication. For this reason they are not treated here, but are noticed elsewhere.1

1 In re North Whitehall, 47 Penn. St., 156.

2 Andrews v. O. & M. R. R. Co., 14 Ind., 169. 'Pratt v. Tinkcom, 21 Minn., 142.

4 See Ante Ch. IV, Pts., I and II.

485

CHAPTER VIII.

PRACTICE AND PLEADING.

I. ORIGINAL PROCESS.

II. NOTICE OF TRIAL.

III. NOTICE OF MOTIONS AND OTHER INTERLOCUTORY PROCEEDINGS.

IV. NOTICE OF APPEAL.

V. NOTICE OF TAKING DEPOSITIONS.

'VI. NOTICE TO PRODUCE BOOKS AND PAPERS.

VII. SERVICE.

VIII. THE RETURN.

IX. PLEADING.

I. ORIGINAL PROCESS.

§ 1135. General Nature of Modern Summons.

1136. Importance of due Service.

1137. When Personal Notice Required.

1138. Rule applies to all Judicial or quasi Judicial Proceedings.

1139. Assessment of Damages to Property.

1140. Decree in Chancery-Summary Proceedings.

1141. Judgment against Sureties.

1142. Divorce and Alimony.

1143. Justice of Peace.

1144. Actions, in Rem.

1145. Annulling Certificate of Purchase.

1146. Knowledge will not Excuse Notice.

1147. Must be Written or Printed.

1148. Must Conform to Statute.

1149. Should State Time and Place.

1150. Where but One Cause of Action Described. 1151. Scire Facias.

1152. Should Contain the Name of Defendant. 1153. Omission of Name held Immaterial. 1154. Venue.

1155. Immaterial Variations and Omissions.

1156. Requirements of different States as to Certainty of Summons. 1157. The "Purpose" to be Stated.

1158. Infant Defendants.

1159. When Returnable.

1160. Substantial and Technical Defects.

1161. Jurisdiction.

§ 1135. General Nature of Modern Summons. Whatever be the wording or the technical name of the instrument, by which a person is advised of the pendency of a civil suit against him; whether it be mandatory in its terms to the officer charged with its service, bidding him to summon the party to be and appear, etc., or is couched in language merely suitable for the conveyance of information to the defendant, advising him that unless he appear, etc., judgment will be taken against him, it is still in effect, a notice, and nothing more, though it may be styled a writ. It no longer serves the purpose of the ancient original writ further than to inform the defendant of the pendency of the action, and afford him an opportunity to appear and defend. In some of the states the original process by which the court obtains jurisdiction of the defendant is no longer styled a writ of summons, but is called simply a notice.1 And where this change has been adopted, the notice is found to subserve all the purposes for which a writ will be found necessary, when it is not desired to place the defendant under personal restraint.

§ 1136. Importance of Due Service. This process, being first in order, is also of primary importance in the institution of a suit either at law or in equity; for its due service, actually or constructively, is necessary to give the court jurisdiction either of the defendant, in personal actions, or of the thing in actions in rem.2

$1137. When Personal Notice Required.

Where the object

of the action is to obtain a judgment against the defendant

Code of Iowa (1873), § 2599, p. 441.

2 The Globe, 2 Blatch. Ct. Ct., 427; Pagett v. Curtis, 15 La. An., 451; Pomeroy v. Betts, 31 Mo., 419; Kehler v. Jack. Manf. Co., 55 Ga., 639.

upon which an execution may issue to be levied generally of his goods and chattels, or of his property, personal, real, and mixed, it is necessary at common law that there should be a personal notice, citation, summons, or subpoena, or that the defendant should voluntarily appear to the action. In cases of this character such notice or appearance is indispensable to the jurisdiction of the court.1

§ 1138. Rule Applies to all Judicial or Quasi Judicial Proceedings. — This is true of every proceeding of a judicial nature, to which there are two or more parties, except where there are statutory provisions authorizing process other than personal. All the parties are entitled to a hearing before judgment can be legally pronounced against them. Of this they could have no assurance, if they were not notified of the pendency of the proceedings against them. Without such notice, then, as is imparted by the original process issuing out of a court or other judicial tribunal, any judgment rendered against one or more of the parties, would not only be erroneous, but in general, absolutely void.

§ 1139. Assessment of Damage to Property. So, where a commissioner of highways instituted proceedings under the provisions of a statute of the State of New York, for the re-assessment of damages to the property of defendant, by reason of the necessary improvement of a public thoroughfare, it was held that the parties whose proprietory rights were affected by the proceeding were entitled to be heard, and hence were entitled to due notice of such proceeding.3

1 Gray . Hawes, 8 Cal., 562; Cooper v. Smith, 25 Iowa, 269; Wilson v. Johnson, 30 Texas, 499.

2 Judah v. Stephenson, 10 Iowa, 493; Madden v. Fielding, 19 La. An., 505; Mitchell v. Gray, 18 Ind., 123; Klemm v. Dewes, 28 Ill., 317; Goudy v. Hall, 30 Ill., 109; Penobscot R. R. Co. v. Weeks, 52 Me., 456; Bruce v. Cloutman, 45 N. H., 37; Oswald v. Grey, 29 Eng. L. &. Eq., 85; Peters v. Newkirk, 6 Cow., 103; Copeland v. Directors of Mining Co., 33 Mich., 2; Mitchell Runkle, 25 Tex., Supp., 132; Simpson v. Knight, 12 Fla., 144; Falconer. Montgomery, 4 Dali., 232; Crowell v. Davis, 12 Met., 293; Ballitt Musgrave, 3 Carr. & Kir., 31; Craig v. Hawkins, Hardin (Ky.), 46; Cobb v. Wood, 32 Me., 455.

People v. Tallman, 36 Barb., 222; Cox v. Mathews, 17 Ind., 367. A police

§ 1140. Decree in Chancery-Summary Proceedings.

So, also, has it been uniformly held that a decree in chancery could not be rendered against a party defendant who had not been cited or notified to appear.1 And whenever a person's rights are to be affected by a summary proceeding or motion in court, he must be notified, in order that he may appear and protect his interests.2

§1141. Judgment against Sureties. So where it was sought to obtain judgment against the sureties on a forthcoming bond, it was held that, in the absence of notice to such sureties, any judgment obtained against them would be an absolute nullity, for the want of jurisdiction, legally obtained, of the parties against whom the judgment was rendered.

§ 1142. Divorce and Alimony. It has also been held that, in an action for divorce, or for alimony incident to a decree of divorce, a personal judgment for such alimony could not be had against a citizen of another state without first obtaining jurisdiction of such non-resident party by the service of process upon him personally, or according to a mode recognized as the legal equivalent of such personal service, within the territorial jurisdiction of the court rendering the judgment. Constructive notice, by publication of summons, will not be sufficient, even where the decree of divorce itself may be rendered upon such substituted process.*

§ 1143. Justice of Peace.- Nothing need be said in support of a rule so salutary. Every variation or modification of its requirements needs justification upon the strongest grounds of necessity. Its application must be alike to all proceedings of a judicial character, whether before courts of general or lim

man against whom charges are preferred by any one except a commissioner is entitled to notice. McDermott v. Board of Police, 25 Barb., 635. Morris v. Bailey, 15 La. An., 2; Elee v. Wait, 28 Ill., 70.

2 George v. Middough, 62 Mo., 549.

Roach v. Barnes, 33 Mo., 319. But sureties are not always entitled to notice before judgment may be entered against them. Farmer v. Stewart, 2 N. H., 97.

4 Beard v. Beard, 21 Ind., 321.