How Do I Write a Legal Ad for Service by Publication?
Full Question:
Answer:
Please see the following Alabama Rule of Civil Procedure. It contains an example of an ad, petition for divorce may be replaced with complaint for "type of complaint" and then appropriate answer date and the court clerk's name would be filled in below, along with your name and address or that or your attorney at the bottom. You may also look at the legal notices section in the classified ads of your local newspaper for examples.:
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.
(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.
(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.
(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.
(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.
(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 effective January 16, 1977; amended effective
October 1, 1995; August 1, 2004.)
