5 Nev. 90 | Nev. | 1869
By the Court,
Upon the trial of this cause, (an action for the recovery of real
By affidavit, order, arid publication of summons, under' the provisions of the Statutes of 1866, it was attempted to obtain service upon Little. The affidavit is as follows:
“ State oe Nevada, County of Storey, Virginia Towns li V ADA) Township No. 2.
"A. Cornwall v.JohN Little. )
“ Now comes plaintiff, A. Cornwall, and after being duly sworn, deposes and says: That he is the above- named plaintiff; that he commenced the above entitled action on the fifth day óf June, a.d. 1866, in the above named Court, to recover the sum of one hundred and thirty dollars. That he has a good cause of action against said defendant John Little, and that no part of the said sum of one hundred ancl thirty dollars has been paid. That said defendant, John Little, resides outside of the State of Nevada, to wit, in Meadow Lake City, Nevada County, State of California.” * *
Upon the question of jurisdiction in the Courts of Justices of the Peace, nothing can be presumed in their favor; each step toward its acquirement must be affirmatively shown. To warrant an order for the publication of a summons, one of certain facts must exist, either that “ the person upon whom the service is to be made resides out of the State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself
Upon this affidavit an order was issued reading thus: “ Upon reading the foregoing affidavit, and good reasons appearing to me for so doing, it is ordered that summons be issued in the case as above entitled, and be published.” ’ * * This order fails to state any fact upon which it is founded; such failure has been held fatal. (Ricketson v. Richardson, 26 Cal. 149.) It also directs a summons to issue. This is not its office; the order should be that “ service be made by the publication of the summons.” Suit is comrhenced before the Justice by the “ filing a copy of the note, etc., and the issuance of a summons thereon.” The order is a direction of extraordinary manner of service, and presupposes the existence of a summons; otherwise it is premature. (People v. Huler, 20 Cal. 81.)
Further objections are made to the summons, to time of entering judgment, etc., but it is unnecessary to pursue this investigation. Statutory provisions for acquiring jurisdiction by any other -than personal service must be strictly pursued. (Jordan et al. v. Giblin et al., 12 Cal. 100; Bayley v. Freeman, 30 Cal. 610; Forbes v. Hyde, 31 Cal. 342; People v. Huler, 20 Cal. 81; Pollard v. Wegener, 13 Wis. 574; Paul et al. v. Armstrong, 1 Nov. 82.) .Such course was not followed, but seems to have been studiously avoided in the actions of Pinkerton and Cornwall against Little.
No foundation for jurisdiction having been laid, none was obtained, and any and all proceedings subsequent to the affidavit and order recited were absolutely void; no valid judgment could have
The order and judgment of the District Court are correct, and are affirmed.