Where an ancillary bill was filed in the court where the principal case was pending, substituted service on the defendant's counsel in the principal case was held good ; Pike v. Gregory, 94 Fed. 373, 36 C. C. A. 299.
In many of the states' statutes have been passed to meet this class of cases. In purely. Personal actions, service by publication is invalid, upon the well-settled principle •that the person or thing proceeded against must be within the jurisdiction of the court enter taining the cause of action. Neal v. Scruggs, 95 U. S. 704, 24 L. Ed. 586; Insurance Co. v. Bangs, 103 U. S. 439, 26 L. Ed. 580," Story, Confl. L. § 539. No court can exercise, at common law, jurisdiction over a party unless he is served with the process within the jurisdiction of the court or vol untarily appears; Mexican Cent. R. Co. v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699; or service is upon some one authorized to accept service on his behalf, or the want of due service is waived by a general appearance, or otherwise; Caledo nian Coal Co. v. Baker, 196 U. S. 432, 25 Sup. Ct. 375, 49 L. Ed. 540.
Where suit was brought in Massachusetts against a non-resident, and he, in Pennsyl vania, accepted service of process, it was held that this did not give the court juris diction; Hocking. Valley Bk. v. Barton, 72 Pa. 110; to the same effect ; White v. White, 66 W. Va. 79, 66 S. E. 2, 24 L. R. A. (N. S.) 1279, 135 Am. St. Rep. 1013.
Substituted service will be allowed upon a defendant who was within the jurisdiction when the writ issued, but had left the coun try (though not to evade service), before serv ice could be made; 77 L. T. R. 335.
Where a suit is brought to enforce a lien on real estate in the district to remove a cloud on the title, the plaintiffs are entitled to get substituted service on a non-resident party in order to bring him within the juris diction of the court; Compton v. Jesup, 68 Fed. 263, 15 C. C. A. 397, 31 U. S. App. 486.
Proceedings in divorce are sometimes rec ognized as forming an exception to the rule; 1 Bish. Marr. Div. & Sep. § 837; Bish. Mar.
& D. § 159.
A suit in equity in the federal court is commenced by suing out process and a bona fide attempt to serve it; U. S. v. Lumber Co., 85 Fed. 827, 29 C. C. A. 431.
Priority of jurisdiction between two courts of concurrent jurisdiction Is determined by the date of the service of process; Schuehle v. Reiman, 86 N. Y. 271; In re Alexander, 84 ' Fed. 633 ; as to criminal cases, see Taylor v. Taintor, 16 Wall. (U. S.) 366, 21 L. Ed. 287. As to the effect of service In relation to the commencement of actions see LIMITA TION.
See DIVORCE; FOREIGN JUDGMENT; NON RESIDENT.
When the service of a writ is prevented by the act of the party on whom it is to be served, it will, in general, be sufficient if the officer do everything in his power to serve it; 1 Mann. & G. 238.
Service of summons on a director of a com pany who was unfriendly to it and failed to report the service, but without collusion with the plaintiff, was ground for setting aside a default judgment thereon; Farrar v. Min. Co., 12 S. D. 237, 80 N. W. 1079.
Where the invalidity, irregularity or defect in service appears on the face of the papers, the objection may be taken by a motion to quash, but where it is necessary to prove j such facts aliunde it should be made by plea in abatement ; Electric Vehicle Co. v. Motor Co., 157 Fed. 316 (S. D. of N. Y.). An order setting aside a return of service of a writ is a final order from which an appeal lies; Ben Franklin Coal Co. v. Water Co., 25 Pa. Sup er. Ct. 628.
If the service of a summons is not illegal, but slightly irregular, and the irregularity does not appear on the face of the return, it will not be set aside on motion, but the ob jection must be raised by plea ; Union Pac. Ry. Co. v. Novak, 61 Fed. 573, 9 C. C. A. 629, 15 U. S. App. 400.
See SHERIFF; notes in‘8 L. R. A. (N. S.) 1186 ; 4 id. 117; 21 id. 344 ; FOREIGN COR PORATIONS.
As to what constitutes the being in the service of the United States within the mean ing of an act relating to longevity pay, see that title.