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summons confers jurisdiction of the person, and the allowance of the provisional remedy gives jurisdiction of the subject matter of the auxiliary proceedings, and each particular kind of jurisdiction confers upon the court its peculiar powers, and none other. So it has been held that the court acquires, by the allowance of a provisional remedy, jurisdiction to make substitution, and to order the action continued in the name of the personal representatives of 202 a deceased party, upon the ground that such action of the court is necessary and proper to put the suit in such a condition that plaintiff can enforce his provisional lien: More v. Thayer, 10 Barb. 259. And this is probably the correct doctrine.
3. But a question of much greater complication is as to whether the defendant, Cordelia Johnson, has been properly served with a summons or with process of the court, so as to give it jurisdiction to render judgment against her by default; and herein is involved the proper practice of the court in making substitution, and bringing the substituted party before it. The procedure for bringing in new parties after the court has made the order to that effect appears to be to amend the complaint, by inserting therein such allegations, as are necessary to make the persons omitted parties to the action, and to insert their names in the summons, and, if they do not enter an appearance, to serve them with the amended summons and complaint, giving them the usual time allowed by statute to original parties in which to answer: Fitman's Trial Procedure, sec. 351; Penfield v. Wheeler, 27 Minn. 358.
4. Bringing in a new party is somewhat analogous to bringing a personal representative of a deceased party before the court, where the deceased was not served with the summons in the action. Section 38 of Hill's Code provides that "no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court may, at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representative or successor in interest.” It has been held in New York and California, under statutes similar to this, that all that is necessary 203 to put the case in condition to proceed is to obtain an order, upon proper notice, directing that the action be continued against those who have succeeded to the interest of the deceased party: Gordon v. Sterling, 13 How. Pr. 405; Coon v. Knapp, 13 How. Pr. 175; Allen v. Walter, 10 Abb. l'r.
379; Emeric v. Alvarado, 64 Cal. 529; Lyles v. Haskell, 35 S. C. 391; Judson v. Love, 35 Cal. 469. But in none of these cases had the original defendant in the action died previous to a service of summons upon him or his appearance of record. The statute provides that the court may, at any time within one year after the death of a party, on motion, allow the action to be continued against the personal representative, but no provision is made, in a case of this kind, as to the manner of bringing in the substituted party. The court could, therefore, adopt any reasonable procedure that might seem proper, but the service of a valid summons could not be dispensed with. Probably, the better practice would have been for the lower court to have required the plaintiff to file a supplemental complaint in the action, showi the death of defendant and the appointment of the executrix, and thereupon to issue an alias summons containing the title of the action after substitution made, and have the same directed to the said Cordelia Johnson. A service of such a summons, together with a copy of the complaint, would undoubtedly suffice to require her appearance, in default of which judg. ment might have been entered against her. Such a practice and procedure seems reasonable, and well calculated to effect the de sired result in an orderly manner.
5. By the order of substitution in the case at bar, the action was continued against Cordelia Johnson, the personal representative of the deceased defendant, upon whom the summons had not been served; so that, assuming that she had notice of the order of substitution, and 204 that the same was regularly entered, she would simply step into the shoes of A. H. Johnson, who had not had his day in court, and it was just as essential that she should have her day in court as that A. H. Johnson should have had his in the first instance. We take it, therefore, that before & valid judgment can be entered against her, whether as executris, or to be of binding force and effect to the extent only of the property attached, she must be served with notice in the manner pro vided by law, as she refuses to voluntarily submit to the jurisdiction of the court. The statute has prescribed but one form of notice through which the court may acquire jurisdiction of the person, and that is, by summons, which, although not process, has the force and effect thereof, and, if not obeyed, will put the party in default. Section 52 of Hill's Code provides that "the summons shall contain the name of the court in which the complaint is filed, the names of the parties to the action, and the title thereof.. It shall be subscribed by the plaintiff or his attorney,
and directed to the defendant, and shall require him to appear and answer the complaint, as in this section provided, or judgment for want thereof will be taken against him.” These requirements are mandatory, and not directory merely: Lyman v. Milton, 44 Cal. 630. Section 55 provides that the service shall be by delivering a copy thereof, together with a copy of the complaint. Now, the summons served upon Cordelia Johnson in form filled the requirements of the statute, but Mrs. Johnson's name was not contained in the title, nor was it directed to her. So far as appears from the summons itself, it contained nothing which could or would inform her that she must appear in obedience to its mandate. So, with the copy of the complaint with which she was served, she is nowhere mentioned as a party litigant, either in her individual or representative capacity. She 296 was informed by the order served with the summons and complaint that the action had been ordered continued against her as the executrix of A. H. Johnson, deceased; and she was advised thereby that she would have ten days after service within which to plead to the complaint. Is all this sufficient to put the administratrix in de fault after the lapse of ten days from service, and to invest the court with jurisdiction to enter judgment against her in her representative capacity? Can it be said that she was served with the summons in the action, substantially such as the law directs?
If A. H. Johnson had lived, and the court had simply made an order after the allowance of the writ that he have ten days after service of a copy of the order and complaint to plead thereto, ad service had been made as required by the order, it must be conceded that the proceeding would not have been equivalent to the issuance and service of a proper summons upon him. A poncompliance with the order would not have put him in default. The order of the court in the present case, including its service with a copy of the complaint, could scarcely have a different or more vital effect, and the fact that she was served with a copy of the summons in which her name was nowhere mentioned could not add to the force of the proceeding. If Johnson had been served with the summons, and substitution made thereafter, the case would be different, as the representative, having due notice of the substitution, would take the case up at the point where, and in the condition in which, the predecessor left it. Judge Rumsev, in his work entitled Rumsey's Practice, vol. 1, page 666, says: "Where the action is revived, the issue and proceedings are taken up at the point where the death of the party as to whom the change is made left them; the new or substituted party takes the
place of the prior one, and the case is revived and proceeds 290 in all respects as if the new party had been in the case from the beginning.” In Reilly v. Hart, 130 N. Y. 625, 27 Am. St. Rep. 540, the court had under consideration a foreclosure proceeding, wherein the plaintiff died pending the service of summons upon two of the defendants by publication, and before the expiration of six weeks' publication thereof, as required by statute. Bradley, J., speaking for the court, said: “But it is not seen how four weeks'publication of summons before the death, and the two weeks following, could be treated as an effectual service upon these nonresident defendants. During the latter period, there was no plaintiff, and, in practical effect, no action, to support any proceedings within that time. The prior publication of the summons was, then, an unaccomplished attempt to serve it." Plaintiff's executrix was substituted, and it was held that what had been accomplished while there was a plaintiff remained effectual, and, when substitution had been made, progress in the action could properly be made from the point in the proceedings where the suspension had left them, and the substitution had no effect, other than to continue the cause in the name of the successor es such. Such being the law, and as no summons was served upon A. H. Johnson, we think that his personal representative, Mrs. Cordelia Johnson, should be served with a proper summons be fore she could be put in default; otherwise, the taking of the property in the action, or as a result of it, would not be by due process of law.
6. This, perhaps, disposes of the questions which are properly here upon the motion to set aside the service of the summons upon Cordelia Johnson, as the executrix of A. H. Johnson, de ceased, and has the effect to vacate the judgment, including the order for the sale of attached property. All this is, however, amenable, providing the writ of attachment was properly issued; and, as the case 297 would, in all probability, come here again for an adjudication upon the regularity and legality of the issuance of the writ, it is thought proper to indicate our opinion at this time upon the question suggested, and dispose of the case accordingly. The question is, Was the writ of attachment properly issued? and this depends upon whether a summons was issued at the time plaintiff had the property of A. H. Johnson attached. The statute (Hill's Code, sec. 144,) provides that "the plaintiff, at the time of issuing the summons, or any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered.” Attach
ment proceedings are purely statutory, and were unknown at common law, and a strict compliance with the provisions of the statute is necessary to the acquirement of a valid attachment. Without a valid writ there can be no levy under it; hence, no attachment. So it has been held, and statutes similar to the above have been 80 construed as to require the issuance of a summons in the action at the time of, or prior to the issuance of the writ of attachment; otherwise, the attachment is without validity or force: Low v. Henry, 9 Cal. 538, 552; Mills v. Corbett, 8 How. Pr. 500; Kellar T. Stanley, 86 Ky. 240.
7. The issuance of the writ being the allowance of a provisional remedy, unless properly and legally issued the court acquired no jurisdiction to make the order of substitution requiring the cause to be continued in the name of Cordelia Johnson as executrix.
8. A summons may be said to have issued in an action commenced in the circuit or county courts of this state when it is made out and signed by the plaintiff or his attorney, and placed in the hands of the sheriff, with the intention that it be served upon the defendant. It is difficult to see how anything less than this would constitute an issuance of summons. The statute requires that the summons shall be served by the sheriff, and, without a delivery to him for service, such instrument is not yet endowed with vitality for any purpose: Hekla Ins. Co. v. Schroeder, 9 Ill. App. 472; Ross v. Luther, 4 Cowp. 158; Mills v. Corbett, 8 How. Pr. 500.
9. The sheriff is required to indorse upon the summons the date of the delivery to him, and an important legislative purpose of this is to establish, fix, and preserve the date of its issue; so that cther proceedings dependent upon the fact of its issuance should r.ot be rendered precarious and uncertain, as would be the case if left to be established by proof aliunde the record. The indorsement being required by statute, it becomes an official duty, which the officer must observe and perform; and, when performed, the record thus made imports like verity with his returns of process and the like, if in deed it is not a part of the return required of him to be made. The record in the case at bar shows a variance as between the sheriff's indorsement, showing the date of the delivery of the summons to him, and the affidavit of plaintiff as to the date of its issuance. The sheriff shows that it was de. livered to him April 17, 1894; and the affidavit of plaintiff, by strong implication, shows that it was delivered on the day previous. Evidently, the affidavit was not intended to impeach