634-23 Joinder of unknown persons; service when defendant unknown or absent. Where an action or proceeding involves or concerns any property, tangible or intangible, within the jurisdiction of a circuit court, or any legal or equitable estate, right or interest, vested or contingent, in any such property, or any status or res within the jurisdiction of a circuit court:

(1) Any person having a claim, interest, or concern so as to be a necessary or proper party, who cannot be identified or whose name is unknown to the plaintiff, may be made party to the action or proceeding as provided by the rules of court;

(2) If a defendant is unknown or does not reside within the State or if, after due diligence, the defendant cannot be served with process within the State, and the facts shall appear by affidavit to the satisfaction of the court, it may order that service be made as provided by section 634-24 or by publication, as may be appropriate; provided that service by publication shall not be valid unless it is shown to the satisfaction of the court that service cannot be made as provided by section 634-24. The affidavit required by this paragraph shall set forth facts based upon the personal knowledge of the affiant concerning the methods, means, and attempts made to locate and effect personal service on the defendant and any other pertinent facts;

(3) Service by publication shall be made in at least one newspaper published in the State and having a general circulation in the circuit in which the action or proceeding has been instituted, in a manner and for a time as the court may order, but not less than once in each of four successive weeks, the last publication to be not less than twenty-one days prior to the return date stated therein unless a different time is prescribed by order of the court. If the action or proceeding concerns real property, the court shall order additional notice by posting a copy of the summons upon the property;

(4) Any adjudication, as regards a defendant served by publication pursuant to this section, or served as provided by section 634-24, shall affect only the property, status or res that is the subject of the action, unless the:

(A) Defendant appears in the action and defends on the merits, in which case the defendant shall be liable to a personal judgment with respect to the claim so defended, including in the case of a foreclosure action a deficiency judgment; or

(B) Service is authorized by section 634-25 or other law, in which case the defendant shall be liable to any judgment authorized by that law; and

(5) Nothing in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law or rule of court. [CC 1859, 1103; am L 1909, c 34, 1; RL 1925, 2343; am L 1929, c 43, 1; am L 1931, c 50, 1; RL 1935, 4079; RL 1945, 10061; RL 1955, 230-31; HRS 634-59; am L 1972, c 89, 2A(f); ren HRS 634-23; am L 1976, c 183, 1; gen ch 1985; am L 2016, c 55, 26]

 

Cross References

 

Publication how made, see 601-13.

 

Rules of Court

 

Proof of publication, see RCC rule 11.

Publication of summons, see HRCP rule 4.

 

Case Notes

 

Not applicable when nonresident defendant has agent here. 2 H. 453 (1861).

Service under creditor's bill to reach property of judgment debtor need not be personal. 10 H. 668 (1897).

Must affirmatively appear that defendant cannot be found and hence personal service cannot be made. 35 H. 689, 711 (1940).

Service by publication, and by posting summons on property was reasonably calculated to inform defendant of quiet title action and consistent with due process. 2 H. App. 395, 633 P.2d 553 (1981).

No evidence that plaintiff exercised due diligence to locate defendants to effect personal service on them. Claimant in adverse possession action must strictly comply with notice requirements. 6 H. App. 241, 718 P.2d 1109 (1986).

 

 

Previous Vol13_Ch0601-0676 Next