
    VOID AFFIDAVIT FOR. SERVICE BY PUBLICATION.
    Common Pleas Court of Montgomery County.
    Nelson Hunt v. Abigail Hunt.
    Decided, June 12, 1913.
    
      Service by Publication — Statutory Limitation as to Officers Before Whom Affidavit for, May Be Made — Affidavit Jurisdictional — Sections 11523, 11524, 11539 and 11540.
    An affidavit for constructive service, made and sworn to before the attorney for the plaintiff, is void and may be stricken from the files.
   Snediker, J.

This case is.before the court on a motion to strike from the files an affidavit filed by the plaintiff herein, for the purpose of laying a foundation for constructive service, for the reason that such affidavit is absolutely void, having been made and sworn to before plaintiff’s attorney. The action is one for divorce.

The provisions of the code relating to constructive service in eases of this character are as follows:

“Section 11298. If the defendant is a non-resident of this state, or his residence is unknown, a notice of pendency of the action must be given by publication as in other cases.”

This section, by its wording, refers back to the general sections of the code relating to constructive service as found at 11292 and 11293. By 11293 the code provides:

‘ ‘ Before service by publication can be made, an affidavit must be filed that service of summons can not be made within this state on the defendant sought to be served,” etc.

It is apparent, therefore, that a proper affidavit is necessary before service by publication can be made in the case at bar.

The question raised by counsel for defendant is as to whether such affidavit may be made by the attorney representing plaintiff. Section 11524 of the General Code provides that an affidavit may be made in or out of this state before any person authorized to take depositions, and unless it is a verification of a pleading, must be authenticated in the same way as a deposition.

Section 11529 of the General Code, entitled, ‘ ‘ Officers Authorized to Take Depositions.” provides:

“Depositions may be taken in this state before a judge or clerk of the Supreme Court, a judge or clerk of the circuit court, a judge or clerk of the court of common pleas, a probate judge, a justice of the peace, a notary public, mayor, master commissioner, official stenographer of any court in this state, or any person empowered by a special commission.”

Section 11532 of the General Code provides:

“The officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.”
Does Section 11524 by its provision that an affidavit may be made before any person authorized to take depositions refer alike to both sections, 11529 and 11532! In other words', do the provisions of 11532 limit the officers named in 11529 in the taking of an affidavit as they do in the taking, of a deposition ? The affidavit referred to by Section 11524 is one to be used as provided by Section 11523, that is: “to verify a pleading, to prove the service of summons, notice, or other process in an action or to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion or in any other ease permitted by law.”
“In any other case permitted by law,” here means any case necessary to carry out the provisions of the code of civil procedure.

It is apparent from sections herein quoted that the affidavit here objected to is so necessary. An examination of the case of Leavitt v. Rosenberg, 83 O. S., at pages 239-240, will make clear the importance of the question here raised. Under authority of that case it is jurisdictional in its character.

Tlie motion is sustained.  