A History of Matrimonial Institutions, Vol. 3 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 3 of 3
Howard, George Elliott
Families; Marriage -- History
A few of the states under consideration have adopted special
provisions governing notice to the defendant. Thus in Louisiana,
"when the defendant is absent, or incapable of acting for any
cause, an attorney shall be appointed to represent him, against
whom, contradictorily, the suit shall be prosecuted."[318] In North
Carolina, if personal service cannot be made, the court may order
service by publication, as in any other actions.[319] By the law
of Tennessee, process is authorized as in chancery cases. If the
wife is the petitioner, the suit may be heard and decided without
service, either personal or by publication, if the bill was filed
and the subpoena placed in the hands of the sheriff of the county
in which the suit is instituted three months before the time when
the subpœna is returnable; but the officer having the subpœna shall
execute it if he can.[320] In New Mexico service of process can be
made by publication after obtaining an order from a judge of the
supreme court, based on an affidavit showing the present residence
of the defendant, if known, or last known place of residence, and
efforts made to ascertain the present residence. The order for
publication shall direct that a copy of the summons be mailed to
the present or last known residence of the defendant, and may
direct such other means of bringing the action to the knowledge of
the defendant as the judge shall deem proper.[321] Until recently
Florida had a still different law. If the defendant is absent from
the state, so that ordinary process cannot be served, or, if served,
he cannot be compelled to appear and answer or plead, the court may
order a hearing on the bill, a copy of such order to be published in
some public newspaper of the state, for the space of three months at
least, or for a longer time, if the court shall so direct, or a copy
of the bill and order for the hearing, certified by the clerk of the
court, shall be actually served upon or delivered to the defendant
at least three months before the day fixed for the hearing, or for
a longer time, as the court may determine. The present statute,
however, directs simply that process be served as in other chancery
suits.[322] This is the rule also in Virginia, West Virginia,
Maryland, Mississippi, Arkansas, and Indian Territory; likewise in
Georgia when the defendant is a non-resident; and in Alabama, where,
if the defendant is a non-resident, publication is essential.[323]
In the District of Columbia process is according to the usual course
of equity and the rules adopted by the court. Missouri requires
process as in other civil actions; and this is the law in the
remaining states and territories of the group.[324]
[318] _Rev. Civil Code of La._ (1888), 69; _ibid._ (1870), 19.
[319] _Code of N. C._ (1883), I, 81, 82; WRIGHT, _Report_, 88.
[320] _Code of Tenn._ (1884), 613; WRIGHT, _Report_, 88.
[321] _Comp. Laws_ (1897), 408.
[322] Compare _Rev. Stat. of Fla._ (1892), 505; WRIGHT, _Report_,
87.
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