Seaver v. Fitzgerald

Citations

• 23 Cal. 85
• 1863 Cal. LEXIS 191

Syllabus

<p>In a suit commenced before a Justice of the Peace, if the summons be returned by the officer with his indorsement thereon that no service has been made because defendant cannot be found, and on the return day thereof it is further made to appear by affidavit that the defendant conceals himself to avoid service of process, the suit does not thereby abate, but the magistrate may continue the cause, issue a new summons, and make an order for its service by publication, and fix the return day of the new summons at a time sufficiently remote to have the service by publication completed before the return day, even if the period between the issuance of the new summons and its return day exceeds ten days.</p> <p>In such case when an attachment is regularly issued by the Justice, at the time of the issuance of the first summons, the attachment is not vitiated by the failure to serve the first summons and the issuance of a second one, nor is the validity of attachment in any way affected by the proceedings.</p> <p>The affidavit stated that the “defendant, D. C. Seaver, was at the time a resident of the first township in the County of Contra Costa; that he had occupied a house on a tract of land claimed to be his own and which he had cultivated up to the commencement of the suit and for a long time previous; that on the twenty-second day of October, the day before the commencement of the suit, he left his residence informing his servant that he would be back that evening or the next day; that the summons in the suit was put in the hands of a proper constable, who made diligent search and was wholly unable to serve it; that Seaver had not returned to his residence, and that he believed he concealed himself for the purpose of avoiding the service of the summons, and that the claim sued on is a just debt.”</p> <p>Held, to be sufficient to authorize the service by publication, and when publication made to give the Court jurisdiction.</p> <p>An order of publication of summons, m