Rule 4.3. Process: Service by publication

Alabama Rules of Civil Procedure

II. Commencement of action; service of process, pleadings, motions,

and orders.

Rule 4.3.

Process: Service by publication.

(a) Scope of rule. This rule applies as follows:

(1)

To a claim historically equitable involving property under the control

of the court (e.g., administration of an estate, interpleader, partition) or marital

status which claim has heretofore been deemed appropriate for service by

publication where the identity or residence of a defendant is unknown or where a

resident defendant has been absent from that defendant’s residence for more than

thirty (30) days since the filing of the complaint and the method of service by

publication in such instances is not specifically provided by statute; and,

(2)

To a claim, whether legal or equitable, against a defendant who

avoids service of process as described in subdivision (c) of this rule. This rule does

not supersede specific procedure for publication as set forth in certain statutes

governing special proceedings (e.g., attachment, in rem action to quiet title) and,

in such proceedings, the specific statutory procedure for publication and all other

requirements appearing therein shall govern except to the extent that subdivision

(b) of this rule may be applicable. In no event shall an in personam judgment be

entered on service by publication except as provided in subdivision (c) of this rule.

(b)

Residence known; when publication appropriate. When the

residence of a defendant is known and the action is one in which service by

publication is permitted, service of process must first be attempted by one of the

methods of service other than publication as is provided by Rule 4 or Rule 4.4, if

service on the defendant is to be effected in a foreign country.

vision (c) of this rule.

(b)

Residence known; when publication appropriate. When the

residence of a defendant is known and the action is one in which service by

publication is permitted, service of process must first be attempted by one of the

methods of service other than publication as is provided by Rule 4 or Rule 4.4, if

service on the defendant is to be effected in a foreign country.

(c)

Avoidance of service. When a defendant avoids service and that

defendant’s present location or residence is unknown and the process server has

endorsed the fact of failure of service and the reason therefor on the process and

returned it to the clerk or where the return receipt shows a failure of service, the

court may, on motion, order service to be made by publication. When a defendant

is a corporation and the process server has endorsed the fact that the process

cannot be served because of the failure of the defendant to elect officers or appoint

agents, or because of the absence of officers or agents from the state of

incorporation and the state of the corporation’s principal place of business for a

period of thirty (30) days from the filing of the complaint or because the officers or

agents are unknown, then such defendant shall be deemed to have avoided

service and the court may, on motion, order service on such defendant to be made

by publication. The mere fact of failure of service is not sufficient evidence of

avoidance, and the affidavit required in subdivision (d)(1) of this rule must aver

specific facts of avoidance.

ing of the complaint or because the officers or

agents are unknown, then such defendant shall be deemed to have avoided

service and the court may, on motion, order service on such defendant to be made

by publication. The mere fact of failure of service is not sufficient evidence of

avoidance, and the affidavit required in subdivision (d)(1) of this rule must aver

specific facts of avoidance.

(d)

Procedure for publication in actions governed by this rule.

(1)

AFFIDAVIT NECESSARY. Before service by publication can be made in

an action where the identity or residence of a defendant is unknown, or when a

defendant has been absent from that defendant’s residence for more than thirty

(30) days since the filing of the complaint or where the defendant avoids service,

an affidavit of a party or the party’s counsel must be filed with the court averring

that service of summons or other process cannot be made because either the

residence is unknown to the affiant and cannot with reasonable diligence be

ascertained, or, the identity of the defendant is unknown, or, the resident defendant

has been absent for more than thirty (30) days since the filing of the complaint, or,

the defendant avoids service, averring facts showing such avoidance.

(2)

HOW PUBLISHED. Upon the filing of the affidavit the clerk shall direct

that service of notice be made by publication in a newspaper of general circulation

in the county in which the complaint is filed; and, when publication is authorized

under subdivision 4.3(c), also in the county of the defendant’s last known location

or residence within the United States. If no newspaper of general circulation is

published in the county, then publication shall be in a newspaper of general

circulation published in an adjoining county.

of general circulation

in the county in which the complaint is filed; and, when publication is authorized

under subdivision 4.3(c), also in the county of the defendant’s last known location

or residence within the United States. If no newspaper of general circulation is

published in the county, then publication shall be in a newspaper of general

circulation published in an adjoining county.

(3)

CONTENTS OF PUBLICATION. The publication shall (A) contain a

summary statement of the object of the complaint and demand for relief; (B) notify

the person to be served that that person is required to answer within thirty (30)

days after the last publication on or before a date certain specified in the notice

which said date shall be thirty (30) days after the last publication; and (C) be

published at least once a week for four successive weeks. In a divorce action,

publication of a notice in substantial compliance with the following form shall be

deemed sufficient:

“NOTICE OF DIVORCE ACTION

“John Doe, whose whereabouts is unknown, must answer Mary Doe’s petition

for divorce and other relief by July 1, 1975, or, thereafter, a judgment by default

may be rendered against him in Case No.______, Circuit Court of

________County.

“Done the 30th day of April, 1975.

“RICHARD ROE, Clerk of the Circuit Court

of ________ County.

“JOE DOAKS

“123 Main Street

“Anywhere, Alabama

“Attorney for Mary Doe”

(4)

WHEN COMPLETE. Service shall be complete at the date of the last

publication.

(5)

PROOF OF SERVICE. After the last publication, the publisher or the

publisher’s agent shall file with the court an affidavit showing the fact of publication

together with a copy of the notice of publication. The affidavit and copy of the notice

shall constitute proof of service.

torney for Mary Doe”

(4)

WHEN COMPLETE. Service shall be complete at the date of the last

publication.

(5)

PROOF OF SERVICE. After the last publication, the publisher or the

publisher’s agent shall file with the court an affidavit showing the fact of publication

together with a copy of the notice of publication. The affidavit and copy of the notice

shall constitute proof of service.

(e) Alternative to publication in certain domestic proceedings.

(1)

WHEN PROPER. When service of process by publication in domestic

proceedings is otherwise proper under this rule and the affidavit made necessary

by subdivision (d)(1) of this rule has been filed, service of process may be made

by first-class mail in lieu of publication when the party requesting such service has

also filed an affidavit setting forth (A) substantial hardship in the payment of the

cost of publication and (B) all of the known addresses of the defendant for the

preceding two years or, if the defendant’s whereabouts have been unknown for

said period, the last known address of the defendant and, if known, the address of

defendant’s next-of-kin or some other person who may know the defendant’s

whereabouts.

(2)

HOW SERVED. The clerk shall place copies of the process and

complaint or other document to be served in envelopes addressed to the defendant

at all of defendant’s addresses as shown in plaintiff’s affidavit and, where

appropriate, in an envelope addressed to the defendant in care of the next-of-kin

or other person who may know the defendant’s whereabouts as shown in plaintiff’s

affidavit. The process shall notify the defendant that the time within which the

defendant is required to appear shall begin to run on the third day after the date

shown on the postmark on the envelope. The clerk shall enter the fact of mailing

on the docket sheet of the action.

ndant in care of the next-of-kin

or other person who may know the defendant’s whereabouts as shown in plaintiff’s

affidavit. The process shall notify the defendant that the time within which the

defendant is required to appear shall begin to run on the third day after the date

shown on the postmark on the envelope. The clerk shall enter the fact of mailing

on the docket sheet of the action.

(3)

WHEN EFFECTIVE. Service by mail pursuant to this subdivision shall

be deemed complete on the third day after mailing and the time for answering shall

run from said third day after mailing.

(dc) District court rule. Rule 4.3 applies in the district courts.

[Adopted 10-14-76, eff 1-16-77; Amended effective October 1, 1995; Amended eff.

8-1-2004.]

Committee Comments on 1977 Complete Revision

District Court Committee Comments

While the district court lacks in rem jurisdiction, the likelihood of attachment

and garnishment proceedings in the district courts makes it necessary for service

of process by publication to be available. Of course, the reference in Rule 4.3 to

service of process by publication in a domestic relations case has no bearing in

view of the unavailability of that jurisdiction in the district courts.

Committee Comments on Complete Revision to Rules 4, 4.1,

4.2, 4.3, and 4.4, effective August 1, 2004

Committee Comments to Amendment to Rule 4.3 Effective

August 1, 2004

This Rule is mostly unchanged. Subdivision (c) was amended to delete the

word “resident.” Under the Rule as amended, any defendant who is avoiding

service is amenable to service by publication, even nonresident defendants.

Subdivision (d)(2) was amended to provide that publication shall be made both in

the forum and at the defendant’s last known county of residence, when avoidance

is the basis for publication.

nchanged. Subdivision (c) was amended to delete the

word “resident.” Under the Rule as amended, any defendant who is avoiding

service is amenable to service by publication, even nonresident defendants.

Subdivision (d)(2) was amended to provide that publication shall be made both in

the forum and at the defendant’s last known county of residence, when avoidance

is the basis for publication.

Note from the reporter of decisions: The order amending Rules 4, 4.1,

4.2, 4.3, 4.4, 6(a), 7(b)(2), 17(a), 22(c), and 26(b), Alabama Rules of Civil

Procedure, effective August 1, 2004, is published in that volume of Alabama

Reporter that contains Alabama cases from 867 So.2d.