Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/58

== CODE CIVIL PROCEDURE ==

Civil Actions §§ 7429-7434
cessive weeks, in a newspaper published in the county in which the action is pending, if a newspaper is published in such county and if no newspaper is published in such county, then in a newspaper published at the seat of government of this state.

[R.C. 1905, § 6841; R.C. 1895, § 5255.]

§ 7430. Mailing summons and complaint. A copy of the summons and complaint must, within ten days after the first publication of the summons, be deposited in some post office in this state, postage prepaid, and directed to the defendant to be served, at his place of residence, unless the affidavit for publication states that the residence of the defendant is unknown. Such copy of summons and complaint may be so mailed by registered letter, in which case, the return registry receipt of the post office department shall be prima facie proof of its mailing and its receipt by the defendant to whom it was mailed.

[R.C. 1905, § 6842; R.C. 1895, § 5256; 1901 ch. 194.]

Summons must be mailed in ten days. Affidavit made of mailing. Service dates from mailing of copy. Davis v. Cook, 9 S.D. 319, 69 N.W. 18; Clyde v. Johnson, 4 N.D. 92, 58 N.W. 512; Star v. Mohan, 4 D. 213, 30 N.W. 169.

Mailing of copy of complaint in accordance with order of publication is not compliance with demand for copy of complaint incorporated in notice of appearance. Murphy v. Missouri & K. Land & L. Co., 22 N.D. 336, 133 N.W. 913.

As to similar provision in Cal. Code Civ. Proc., § 413, see Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34, 13 Pac. 73; Ligare v. California S. R. Co., 76 Cal. 610, 18 Pac. 777; Mudge v. Steinhart, 78 Cal. 34, 12 Am. St. Rep. 17, 20 Pac. 147; Perkins v. Wakeham, 86 Cal. 580, 21 Am. St. Rep. 67, 25 Pac. 51; La Fetra v. Gleason, 101 Cal. 246, 35 Pac. 765; Schart v. Schart, 116 Cal. 91. 47 Pac. 927; Foster v. Vehmeyer, 133 Cal. 459, 65 Pac. 974; People v. Norris, 144 Cal. 422, 77 Pac. 998; Grewell v. Henderson, 5 Cal. 465; Stearns v. Aguirre, 6 Cal. 176; Ware v. Robinson, 9 Cal. 107; Jordan v. Giblin, 12 Cal. 100; Seaver v. Fitzgerald, 23 Cal. 85; Ricketson v. Richardson, 26 Cal. 149; Steinbach v. Leese, 27 Cal. 295; Forbes v. Hyde, 31 Cal. 342; Savings & L. S. v. Thompson, 32 Cal. 347; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742.

§ 7431. Personal service equivalent to publication. After the affidavit for publication and the complaint in the action are filed, personal service of the summons and complaint upon the defendant out of the state shall be equivalent to and have the same force and effect as the publication and mailing provided for in this chapter.

[R.C. 1905, § 6843; R.C. 1895, § 5257.]

Summons and complaint mailed to defendant were taken from the post office by defendant's husband and delivered to her in a sealed envelope, held not personal service. ''Rhode Island Hosp. Tr. Co. v. Keeney'', 1 N.D. 411, 48 N.W. 341.

Summons and complaint left at dwelling outside state after order for service by publication not equivalent to personal service. such service applies only within state. Bank v. Helmes, 12 N.D. 38, 94 N.W. 764.

§ 7432. Times when service must be made. The first publication of the summons or personal service of the summons and complaint upon the defendant out of this state must be made within sixty days after the filing of the affidavit for publication; if not so made, the action shall be deemed discontinued.

[R.C. 1905, § 6844; R.C. 1895, § 5258.]

§ 7433. When service complete. Service by publication is complete upon the expiration of thirty-six days after the first publication of the summons, or in case of personal service of the summons and complaint upon the defendant out of the state, upon the expiration of fifteen days after the date of such service.

[R.C. 1905, § 6845; R.C. 1895, § 5259.]

§7434. When defendant permitted to defend. The defendant upon whom service by publication is made, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant upon whom service by publication is made, or his representatives, upon making it appear to the satisfaction of the court by affidavit, stating the facts, that he has a good and meritorious defense to the action, and that he had no notice or knowledge of the pendency of the action so as to enable him to make application to merits, may, in like manner, be allowed to defend after judgment, or at any time within one year after notice or knowledge thereof, and within three years after its entry, and on such terms as may be just; and if the defense