The herald., 1897-09-16
A NICE POINT
Jurisdictional Question Passed on by
Judge Shaw


In the suit of Douglass against Willard
Judge Shaw rendered an opinion where
In he passes upon a question not infre
quently coming before the courts-the
construction of the section of the code
of civil procedure as to the effect of
personal service of the summons out of
the state.
''The exact point" says Judge Shaw.
has never been passed upon by the
supreme court of this state, and as II is
a jurisdictonal question, and one which
often arises, have given it careful con-
sideraton.
The complaint was filed and the sum-
mons issued on May TO- 1897. An order
for publication of the summons was
made May 1, directing that the publica-
tion be made in newspaper once week
for two weeks. This order was not filed
until August 13. The summons was
| never published in a newspaper but was
personally served on the defendant at
Lowell, Mass, on May is. The sum-
mons with the proof attached was not
returned or filed with the clerk until
August 13. and on the same day the de-
fault in question was entered
The defendant by section 407 c. c. P.
is allowed the period of thirty days after
the service of the summons is complete
within which to answer No default
can legally be taken against him until
this period has expired. This default
was taken "a days after the order for
publication was made, but only 81 days
after the summons was served liz Massa
chusetts. If the service was complete
when the summons was thus delivered
to the defendant and the so days period
began to run at that time, May is, then
of course default on August 13 would
be properly taken. Rut it is clear from
the section of the code that the delivery
of the copy of the summons and COM
plaint to the defendant out of the state
does not make a complete service, but
| that it is also necessary that the time
prescribed in the order, in this case two
months, must expire before the sum-
mons is to be considered as fully served.
The defendant was therefore not i'll de-
fault until after the period of two months
prescribed for publication and the addi-
tional period of thirty days thereafter
had elapsed.
This makes it necessary to decide
the question when the period for publ
cation in the order began to run. If it
begins at the time order is made the
two months in the case would expire on
July IL, and the time to answer would
expire on August 10, and the default
would be properly entered. If it began
on May IS, when personal service was
made then it would expire on July Is,
and the time to answer would extend
to August II, which is four days after
the default was taken. In case where
publication is actually made it has been
decided that the period prescribed for
publication begins to run on the day of
the first publication in the newspaper
1t seems necessary to hold in a case like
this that the time of publica ton does
not begin to run until the service out of
the state is made. The other construc-
ton would enable the plaintiff to wait
until the two months after the making
the order had but one day to run, and
by serving the summons on the last day
to reduce the actual notice to the de-
fendant to thirty days.
"It is manifest from the language of
the section that the time for publica-
ton prescribed by the ord5er refers to
the time during which the summons is
actually being published in the news
begin until the actual publication begins
And this is in truth the effect of the cases
cited holding that when publication is
actually made it must be for two months
after the first insertion in the newspa-
per. This negatives the proposition
that the making of the order sets the
time in motion, and the conclusion is
therefore inevitable that in the absence
Of actual publication the time for pub
lica ton, referred to in the clause pro-
viding for personal service out of the
state as a substitute, must be held to
begin to run at the time of such personal
service.
1t follows that the default was pre-
naturely entered and should be set aside
and consequently the court granted the
defendants motion to set aside the de-
fault.