§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 such manner
and for such 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 shall, as regards a defendant
served by publication pursuant to this section, or served as provided by
section 634-24, affect only the property, status or res which is the subject of
the action, unless (A) the 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) the service is authorized by section 634-25 or
other provision of law, in which case the defendant shall be liable to any
judgment authorized by such law.



(5)  Nothing herein contained 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]



 



Rules of Court



 



  Proof of publication, see RCC rule 11.



 



Cross References



 



  Publication how made, see §601-13.



 



Case Notes



 



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



  Service under creditor's bill to reach property of judgment
debtor need not be personal.  10 H. 668.  Must affirmatively appear that
defendant cannot be found and hence personal service cannot be made.  35 H.
689, 711.



  Under prior law not applicable to district magistrate.  20 H.
132, aff'd 233 U.S. 70.



  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.



  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.