Quigley

Unlawful detainer.

Judgment by default was entered against defendant, from which he appeals.

Summons was issued May 21, 1902, and on the same day the plaintiff filed an affidavit, stating that personal service could not be made for the reason that defendant could not be found, and was concealing himself to avoid service. The judge thereupon made an order directing that service be made by publication in a daily newspaper published in San Francisco, commencing with the twenty-first day of May, until and including the twenty-sixth day of May, 1902, and "directing that the summons be returned on the twenty-sixth day of May, 1902, which was the return day named in the summons.

The summons was not served until the completion of the period of time prescribed for its publication,—that is, May 26, 1902. Judgment by default was entered May 28, 1902.

The code provides (Code Civ. Proc., sec. 1166) that the summons must be “returnable at a day designated therein, which shall not be less than three days, nor more than twelve days from its date, except in cases where the publication of the summons is necessary, in which case the court or a justice thereof, may order that the summons be made…