Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/56

== CODE CIVIL PROCEDURE ==

Civil Actions §§ 7427-7428
1 Am. St. Rep. 34, 13 Pac. 73; Allison v. Thomas, 72 Cal. 562, 1 Am. St. Rep. 89, 14 Pac. 309; Fraser v. Oakdale L. & W. Co., 73 Cal. 187, 14 Pac. 829; Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089; Williamson v. Cummings R. D. Co., 95 Cal. 652, 30 Pac. 762; Hunter v. Bryant, 98 Cal. 247, 33 Pac. 51; People v. Dodge, 104 Cal. 487, 38 Pac. 203; Alexander v. McDow, 108 Cal. 25, 41 Pac. 24; ''Hibernia S. & L. Soc. v. Clarke'', 110 Cal. 27, 42 Pac. 425; Egery v. Buchannan, 5 Cal. 53; Newhall v. Provost, 6 Cal. 85; Sutter v. Cox, 6 Cal. 415; Dorente v. Sullivan, 7 Cal. 279; Alderson v. Bell, 9 Cal. 315; McMillan v. Reynolds, 11 Cal. 372; Curtis v. Herrick, 14 Cal. 117, 73 Am. Dec. 632; Gavitt v. Doub, 23 Cal. 78; Calderwood v. Brooke, 28 Cal. 151; Dimick v. Campbell, 31 Cal. 238; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Drake v. Duvenick, 45 Cal. 455.

'''§ 7428. Service by publication. Cases and manner.''' Service of the summons in an action may be made on any defendant by publication thereof upon filing a verified complaint therein with the clerk of the district court of the county in which the action is commenced, setting forth a cause of action in favor of the plaintiff and against the defendant and also filing an affidavit stating the place of the defendant's residence, if known to the affiant, and if not known, stating that fact, and further stating:

1. That the defendant is not a resident of this state; or,

2. That the defendant is a foreign corporation, joint stock company or association and has no agent or person in this state upon whom service may be made under the provision of section 7426; or,

3. That personal service cannot be made on such defendant within this state to the best knowledge, information and belief of the person making such affidavit, and in cases arising under this subdivision the affidavit shall be accompanied by the return of the sheriff of the county in which the action is brought, stating that after diligent inquiry for the purpose of serving such summons he is unable to make personal service thereof upon such defendant.

The affidavit shall also state or complaint show:

1. That the defendant has property within this state or debts owing to him from residents thereof; or,

2. That the defendant is a resident of this state and has departed therefrom with intent to defraud his creditors, or to avoid the service of summons, or keeps himself secreted therein with a like intent; or,

3. That the relief sought in the action consists wholly or partly in excluding the defendant from any interest in or lien upon specific real or personal property within this state, or in enforcing, regulating, defining or limiting such interest or lien in favor of either party to the action; or otherwise affecting the title to such property; or,

4. That the action is for divorce or for a decree annulling a marriage; or,

5. That the defendant in any of the cases mentioned in the last preceding subdivisions 1, 2, 3, and 4 is unknown to the plaintiff.

[R.C. 1905, § 6840; C Civ. P. 1877, § 104; R.C. 1895, § 5254.]

A verified complaint is an affidavit. Wood v. Pollard, 14 S.D. 44, 84 N.W. 214.

Right of defendant to answer at any time before judgment. Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296.

Sufficiency of affidavit for order of publication. Beach v. Beach, 6 D. 371, 43 N.W. 701: ''Iowa State Sav. Bank v. Jacobson, 8 S.D. 292, 66 N.W. 453: Davis v. Cook, 9 S.D. 319, 69 N.W. 18; Plummer v. Blair, 12 S.D. 23, 80 N.W. 139; Bothell v. Hoellwarth, 10 S.D. 491, 74 N.W. 231; Woods v. Pollard, 14 S.D. 44, 84 N.W. 214; Coughran v. Markley, 15 S.D. 37, 87 N.W. 2; Coughran v. Germain, 15 S.D. 77, 87 N.W. 527; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Hartzell v. Vigen'', 6 N.D. 117, 69 N.W. 203, 35 L.R.A. 451, 66 Am. St. Rep. 579.

Complaint may be made a part of the affidavit. Coughran v. Markley, 15 S.D. 37, 87 N.W. 2.

First publication of summons cannot be on Sunday. McLaughlin v. Wheeler, 2 S.D. 379, 50 N.W. 834.

Publication for six successive weeks. ''Iowa State Sav. Bank v. Jacobson'', 8 S.D. 292 66 N.W. 453

Affidavit of mailing copies to defendant. Davis v. Cook, 9 S.D. 319, 69 N.W. 18.

Mailing copy of summons in ten day sufficient. Star v. Mahan, 4 D. 213, 30 N.W. 169.