p. 717Mabel D. Purvis, Respondent, v. James R. Purvis, Appellant.Headnote
¡Process—matrimonial actions —substituted service of summons.Sections 435 and 436 of the Code of Civil Procedure, relating to substituted service of summons in a court of record, do not apply to matrimonial actions, for section 1774 of the Code of Civil Procedure only allows judgment by default upon personal service or upon service without the State by publication, and process should not issue when the defendant can render it nugatory by failing to appear.
Appeal by the defendant, James R. Purvis, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 8th day of February, 1915, denying his motion to vacate an order directing substituted service of a summons upon him in this action.
William W. Dickinson, for the appellant.
William T. Doane, for the respondent.
The action is one for separation. Sections 435 and 436 of the Code of Civil Procedure, which provide for substituted service of a summons issued in any court of record, do not in terms designate any action to which their provisions are not applicable. But when those sections are read in connection with section 1774 it would seem that they are not intended to apply to matrimonial actions. It is provided in the latter section that a final judgment shall not be rendered in favor of the plaintiff in such actions upon the defendant’s default in appearing or pleading unless either the summons and a copy of the complaint were personally served upon the defendant, or the copy of the summons delivered to the defendant upon personal service of the summons, or delivered to him without the State, or published pursuant to an order for that purpose, contains certain words descriptive of the action as therein stated. No mention is made in the section of service of summons in such actions pursuant to an order for substituted service, granted as prescribed in sections 435 and 436, supra. The sections
p. 718providing for service by publication of the summons, or personal service thereof out of the State, specifically include matrimonial actions. (Code Oiv. Proc. § 438, subd. 4; Id. § 443, subd. 2, as amd. by Laws of 1914, chap. 346.) A method of service of summons in such actions is thus provided under circumstances which, in other actions, might authorize an order for substituted service under sections 435 and 436. We think the effect of the provisions of section 1774, above referred to, is to preclude the granting of judgment by default in a matrimonial action except in a case where service of summons has been made in the manner therein indicated. If this be so, it would be idle to provide for a service of summons in a manner the effect of which would be that defendant by simply omitting to appear could render service of the summons vain.
The order should be reversed and motion granted, without costs.
All concurred.
Order reversed and motion granted, without costs.