Priest v. Capitain. in suits at law and other judicial writs; that at said date he received from the circuit clerk of the city of St. Louis, State of Missouri, a writ of summons to which was annexed a certified copy of an amended petition issued in a certain suit then pending in Court Room No. 5 of the circuit court of the city of St. Louis, State of Missouri, a certified copy of said amended petition and said summons being hereto annexed with direction to serve said writ of summons upon Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain and Chouteau Capitain, then residing in the city of Los Angeles, California; that in compliance with direction he executed said process in the city of Los Angeles, State and county aforesaid, on the 12th day of May, 1892, by delivering a true copy of said amended petition and summons as hereto annexed to Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain and Chouteau Capitain, that is to say, by delivering a true copy of said amended petition and a true copy of said summons to each of said defendants. "C. A. ALEXANDER. "Sworn to and subscribed before me this 13th day of December, 1905. "(Seal) C. G. KEYES. 'County Clerk and Ex-Officio Clerk of the Superior Court of Los Angeles County, State of California. "(Seal) "Witness my hand and the seal of the superior court of Los Angeles county at the office of said court in the city of Los Angeles, this 13th day of December, 1905. "I further certify that said C. A. Alexander was on the 12th day of May, 1892, a deputy sheriff of the county of Los Angeles, and as such was duly authorized to serve process in the county of Los Angeles and Priest v. Capitain. State of California, and that at that date he was an officer of said court. "(Seal) C. G. KEYES. "County Clerk and Ex-Officio Clerk of the Superior court of Los Angeles County, State of California." This application the court sustained and allowed the amendment as prayed. From such order this appeal was taken. Later, the case to set aside the judgment in the original Priest case was tried, and appealed to this court. In such trial this amended return, as well as the other returns, became potent factors or are so considered by counsel. The two cases were then ordered by this court to be heard together and were so argued. Upon our record, the one now under consideration is numbered, 14,373, and the other, 14,965. To our mind the action upon the part of the court as to this amended return, as well as the force and effect of the previous return, should be first determined in this case before the discussion of the succeeding case. The foregoing sufficiently states all facts for the present case. I. Under the facts three questions are presented, (1) does the law contemplate the amendment of a return made by an officer of a foreign state under our statute which provides for this substituted service, (2) if so, can one out of office make such amended return, and (3) if such amendment was improperly made was the original return sufficient. The latter proposition comes more properly in the companion case, but as the two cases must be read and considered together, we might as well dispose of the whole matter in this case. The latter question has been briefed in this case and we are therefore not without light upon the subject. These questions we take in order. This service was made in 1892 and the statutes of 1889 was the governing law. Priest v. Capitain. Section 2029, Revised Statutes 1889, reads: "In any of the cases mentioned in section 2022, the plaintiff may cause a copy of the petition, with a copy of the summons, to be delivered to each defendant residing or being without this state, and at any place within the United States or their territories, twenty days before the commencement of the term at which such defendant or defendants are required to appear; and if the defendant shall refuse to receive such copy of the petition and summons, the offer of the officer to deliver to him the same, and such refusal, shall be as effectual service as though such copies were actually delivered to such defendant. Such service may be made by any officer authorized by law to serve process within the state or territory where such service is made, and shall be proved by the affidavit of such officer, stating the time and manner of such service, made before the clerk or judge of the court of which affiant is an officer. Such clerk or judge shall certify the official character of the affiant, and to his authority to serve process within the state or territory where such service was made. When such certificate is made by a clerk or judge of a court of record, the same shall be attested by the seal of such court, and when the same is made by a judge of a court not of record, the official character of such judge shall also be certified by the proper officer of the state, under his official seal. And any return of service, made and certified as above provided, shall be prima-facie evidence of the facts stated in such return. If the plaintiff, in any of the causes mentioned in section 2022, shall make the affidavit required by said section and shall file in said cause proof of service of process on any defendant or defendants, in conformity with the provisions of this section, it shall not be necessary for such plaintiff or plaintiffs to obtain the order provided in section 2022, or to procure the publication provided in section 2028. Service of process in conformity with this section shall Priest v. Capitain. be as effectual within the limits of this State as personal service within this State, and judgments rendered against defendants thus served shall have the same force and effect within the limits of this State as judgments rendered against defendants personally served with summons in this State.' 99 The latter clause of the section has been held to be violative of constitutional rights, if construed to mean that a personal judgment could be entered upon such a service. [Moss v. Fitch, 212 Mo. 484, and cases therein reviewed.] This statute, it will be observed, requires service of notice to be made by some officer authorized to serve process in the state in which service is sought. It then prescribes what the proof of that service shall be. That proof must appear upon the summons, one of the files of the case. Upon that proof the courts of this State assumes or refuses to assume jurisdiction. The statute having prescribed a single mode of proof, none other can be accepted. Upon this point it has been well said by GOODE, J., in Harbert v. Durden, 116 Mo. App. 1. c. 515: "The general rule of law is that when a statute designates the mode in which due publication of a notice shall be proved, this mode is the only one for making the proof. [Comfort v. Ballingal, 134 Mo. 281, 294; Martin v. Allard, 17 S. W. 878; Martin v. Barbour, 140 U. S. 644; Luffborough v. Parker, 16 Serg. & Rawles Rep. 351.] All the decisions we have found upholding that doctrine were based on statutes which appeared to exact a certain mode of proof; instead of merely saying, as the one under examination does, that a given mode shall be sufficient." He had under consideration the statute referring to the proof to be made of a publication. That statute says that such proof as therein named "shall be sufficient evidence of the publication," but does not limit the proof to the method suggested by the statute. The statute Priest v. Capitain. under consideration prescribes a single method of proof. It does not leave it open to other methods of proof. It says: "Such service may be made by any officer authorized by law to serve process within the state or territory where such service is made, and shall be proved by the affidavit of such officer, stating the time and manner of such service, made before the clerk or judge of the court of which affiant is an officer." This therefore is the only proof which the court has before it upon the question of its jurisdiction, because the court cannot proceed to adjudicate the res until some kind of a constructive notice has been legally given. It is without jurisdiction to proceed with the res until due proof has been made of notice. What we have said above readily bears more upon a succeeding question than upon the one now under discussion, but we add it now to the end that it may enable us to get a clearer view of the question we desired to discuss in this paragraph. That question is: Did the circuit court have the right to allow the amended proof of service in this case? That an officer of a court may by leave of court amend his return of service of process, there is no doubt. But the party serving this notice was not an officer of the court to which he applied for leave to file a new and additional affidavit of service. His service of notice or process was not evidenced by an official act. He was an officer in California, but not an officer in Missouri. Officers in Missouri make their returns under their official oaths, and if they find that they have made a mistake in a return, by leave of court they can under their official oath amend it. And further, having once been an officer of the court, we have permitted them to amend their returns, even after leaving office. But all this is on the theory that they are or have been officers of the court and known to the court. And it might be said to be upon another |