[§ 3014 ice was had. A jurisdictional defect may be questioned on a collateral attack.10

The summons itself may be amended in formal particulars, such as to state the correct name of the corporation when actually served as intended, or to describe it as a corporation,12 or unnecessary matter may be stricken out of it.13 If the summons did not run to the corporation, its agent cannot consent that it be brought in by substituting its name for his.14

Matter necessary to be shown by the complaint and the process for a given kind of service cannot be shown by suppletory affidavits.15 Generally speaking a return is but the proof of the facts of service and therefore it may be amended to state such facts, which when done makes the new matter of the return read by relation as a part of the original return and with like effect.16 The name of the person

9 See cases cited this section, infra. 10 If any element of jurisdiction is wanting the judgment based on the service is collaterally assailable, and it may also be done on extrinsic proof destructive of the jurisdiction. Freeman on Judgments (4th Ed.), § 126; Black on Judgments, § 223.

11 Misnomer in a writ well served may be corrected by amendment. Sherman v. Connecticut Bridge, 11 Mass. 338; Burnham v. Savings Bank, 5 N. H. 446; Lane v. Seaboard & R. R. Co., 50 N. C. 25.

Mere mistake in name in summons whereby the name of plaintiff's predecessor partnership was used, may be amended after judgment, the name being correct in other parts of the record. Thurber-Whyland Co. v. Klittner, 62 Hun (N. Y.) 620, 16 N. Y. Supp. 828.

Amendment of writ and return to state corporation's name instead of its president's is void, no service on it having been made. Blodgett v. Schaffer, 94 Mo. 652, 7 S. W. 436.

12 Snyder v. Philadelphia Co., 54 W. Va. 149, 63 L. R. A. 896, 102 Am. St. Rep. 941, 1 Ann. Cas. 225, 46 S. E. 366.

Writ may be amended to describe plaintiff, "Stewards of M. E. Church'

as a corporation. Stewards of M. E. Church v. Town, 49 Vt. 29.

13 Writ commanding the summoning of the proper officer of the" named defendant was properly amended by striking out the quoted words. Stone v. Travelers' Ins. Co., 78 Mo. 655.

14 An agent served as defendant cannot consent to an amendment naming his corporation instead as defendant. Booth v. A. Feldman Const. Co., 139 N. Y. Supp. 315.

15 Evidence aliunde will not be received on the motion to show a state of facts warranting the substituted service which the complaint and the summons did not warrant. Webster v. Iowa State Traveling Men's Ass'n, 165 Fed. 367.

16 See 32 Cyc. 514, 537, and see also Freeman, Executions (3rd Ed.), § 360, p. 2044, where the rules as to amendment of returns to execution are stated.

May be amended by leave to conform to fact if jurisdiction was had. Valley Bank & Savings Institution v. Ladies' Congregational Sewing Society, 28 Kan. 423.

Amended return relates back. El Paso & S. W. R. Co. v. Kelly (Tex. Civ. App.), 83 S. W. 855, rev'd 99 Tex. 87, 87 S. W. 660; McClure-Mabie

served and facts showing him competent,17 the residence of the person served, 18 the place of service, 19 the leaving of a copy,20 may be supplied by amendment conformable to the facts. Unnecessary matter may be stricken out.21 Every deficiency must be supplied by the return to be effectual.22 Amendment may be made after judgment 23 on notice and leave given,24 but not after appeal pending,25 unless in the appellate court.26 Service and return to a justice of the peace may be amended on appeal to show the facts.27 According to the usual practice, a formal defect, such as an incorrect return to a good service, may be regarded as made, when assailed, as if actually made.28 In any court a full showing of the facts and production of the officer may be required.29

All defects in summons and service may be cured by appearance 30 and subsequent pleadings may do so.31 Immaterial ones will be disregarded; for example, if more than one officer was served and the service was good as to any, it is immaterial that it was bad as to the others.32

§ 3015. Process in rem; citations; proceedings not inter partes. Mention has already been made of jurisdiction in rem being of a thing rather than of a corporation owning or claiming it.33 Process in rem against corporate property is nearly always by attachment and garnishment, which are fully treated in the ensuing chapter.34 In probate proceedings the notice or citation may be served on a corporation. according to the practice allowed by the statute.35 A statute in California, and perhaps other western states, allows the courts to devise any suitable process to effectuate their jurisdiction; and this has been applied in a contempt proceeding by ordering service of an order to show cause on attorneys of record for the corporation.36

§ 3016. Notices analogous to process. The rule that notice to the agent is notice to the principal permits service of notices which must be "personal" on any agent of the corporation who represents it in respect to the subject-matter of the notice, and the want of a statute prescribing who shall be served does not imply that such notices can

for examination as to the facts.
Thomasson v. Mercantile Town Mut.
Ins. Co. (Mo. App.), 81 S. W. 911.
30 See § 3019, infra.

31 Filing an amended petition with the correct name does not cure misdescription in citation. Southern Pac. Co. v. Block, 84 Tex. 21, 19 S. W. 300. Waiver of defects by pleading to merits, see § 3069, infra.

32 Com. v. Wilmington & R. R. Co., 2 Pearson (Pa.) 408.

33 See § 2977, supra.

34 See chapter on Attachment and Garnishment, infra.

35 By statute (Comp. L. § 4442), the probate judge on appeal from allowance of a claim is to prescribe the manner of notice; and by another statute (section 6544) if prescribed service cannot be made it shall be

"'in such other manner as the court"

may direct. Under these personal

service on a director and also on an attorney was good. Simpson v. Mansfield, C. & L. M. R. Co., 38 Mich. 626. Not only the manner of service but the persons to be served may be prescribed by his order. Id.

36 In a contempt proceeding the order to show cause may be served on the attorneys of the corporation of record in the action or who appear therein. The court may direct such mode of service under its statutory power (Code Civ. Proc. § 187) to devise any suitable process or mode of proceeding." Golden Gate Hydraulic Const. Min. Co. v. Superior Court, 65 Cal. 187, 3 Pac. 628.

See also chapter on Contempts, supra.

not be served on corporations,37 unless a more restrictive meaning is ascribed to the word "personally." 38 Accordingly notices in the course of legal proceedings may be served on the attorney of record,39 or on the person served with summons.40 In the absence of a statute notices preliminary to an action and required by statute to fix a right or a lien should be served on the president or chief officer or manager, and in absence of them on any officer whose relation to the governing body or head would require him to transmit it or communicate such notice to them,41 but if there is a statutory mode of service it must be followed.42 Notices of certain kinds 43

[§ 3017 served in like manner to process. A notice, such as one for an injunction, may be sufficient to bind the corporation and its officers and not the stockholders.44

83017. Admission or acknowledgment of service. It is a general rule that a proper officer on whom service might be made may acknowledge the service thereof with the same effect as if service had been proved by the regular return or proof, and when the chief officer is absent or cannot be served this authority devolves on the one next eligible for service.46 Such officers may also waive citation or summons.47 An attorney employed by the president may also accept service,48 provided the authority to employ an attorney rested with the president, but not otherwise.49 Even if acceptance by an attorney is invalid, it may be effectual as an order to enter an appearance 50 and this seemingly sound rule seems to reduce the question, as far as attorneys are concerned, simply to one of whether the attorney was lawfully the attorney for the corporation; for if he was, then the authority to enter an appearance is within his representative powers.51 The superintendent of insurance, or other designated officer for service, may also make an acceptance or acknowledgment,52 and

44 The reasonable notice of application for injunction required by statute is sufficiently given to bind it and defendant directors by service on the company at its office, but shareholders will not be bound. Brown v. Pacific Mail Steamship Co., 5 Blatchf. 525, Fed. Cas. No. 2,025.

As to conclusiveness of a judgment on the stockholders, however, see § 3124, infra.

45 Any one on whom service may be had may acknowledge that he has been served. Talladega Ins. Co. v. Woodward, 44 Ala. 287.

The president who could be summoned could accept service. First Nat. Bank of Ceredo v. Huntington Distilling Co., 41 W. Va. 530, 56 Am. St. Rep. 878, 23 S. E. 792.

46 One who was cashier, also secretary, and was the only managing officer, the president being nonresident could be served, and hence could accept service. Whitman v. Citizens' Bank of Reading, 110 Fed. 503.

47 Waiver of citation by president and secretary is binding, they being officers who could have been served. Fox v. Robbins (Tex. Civ. App.), 70 S. W. 597.

48 Attorney may acknowledge service, though not employed by resolution but only by president. Beebe v. George H. Beebe Co., 64 N. J. L. 497, 46 Atl. 168. .

49 Employment of attorneys was left with the board of directors. Bridgeport Sav. Bank v. Eldredge, 28 Conn. 556, 73 Am. Dec. 688.

50 Admission of service on writ by attorney (who is not qualified for service) is equivalent to an order to enter an appearance, but is not good as a service. Northern Cent. R. Co. v. Rider, 45 Md. 24.

51 See §§ 2933, 2934, supra, § 3018, infra.

52 Appelbaum v. Star Fire Ins. Co., 115 N. Y. App. Div. 117, 100 N. Y. Supp. 747.