49 Iowa 34 | Iowa | 1878
The authority for service by publication is found in section 2618 of the Code, which provides that “service may be made by publication when an affidavit is filed that personal service cannot be made on the defendant within this State, in either of the following cases. * * * * * Fifth — In actions brought against non-residents of this State or a foreign corporation having in this State property * * * * * sought to be taken by any of the provisional remedies * * * * * -rán pe observed that by the foregoing provisions the service may be made by publication in actions brought. While it is true an action is said to be commenced by serving the defendant with an original notice, yet it cannot be said to be brought until a petition has been filed setting forth the cause of action. We think there is no authority to serve by publication until after the action is fully brought. This view is strengthened by section 2619, which provides that “the publication must be made by publishing the notice
The publication of the notice at a time not authorized was a defect in the proceedings which could not be amended, and we think the court did not err in setting aside the judgment as soon as the want of jurisdiction was discovered.
Affirmed.