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John D. (John Downey) Works.

Courts and their jurisdiction; a treatise on the jurisdiction of the courts of the present day, how such jurisdiction is conferred, and the means of acquiring and losing it online

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Online LibraryJohn D. (John Downey) WorksCourts and their jurisdiction; a treatise on the jurisdiction of the courts of the present day, how such jurisdiction is conferred, and the means of acquiring and losing it → online text (page 29 of 93)
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what the affidavit must contain is the statute. Whether
the judgment rendered upon the publication is valid or
invalid may depend upon the statute being complied with,
but not necessarily so. The affidavit and every other step
in the proceeding may be made and taken in strict con-
formity to the statute, and yet the judgment be void be-

1 Atkins V. Atkins, 9 "Neb. 200 ; 2 N. W. Rep. 466 ; Forbes v. Hyde, 31
Cal. 342, 349; Britton v. Larson, 23 Neb. 806; 37 N. W. Rep. 681 ; Pen-
noyer v. Neff, 95 U. S. 714, 721.

^ Anderson v. Goff, 72 Cal. 68 ; 13 Pac. Rep. 73 ; Carnes v. Mitchell, 82
la. 601; 48 N. W. Rep. 941.

3 Anderson v. Goflf, 72 Cal. 68; 13 Pac. Rep. 73.



CONSTRUCTIVE SERVICE OF PROCESS. 273

cause the case is one in which a judgment can not legally
be had upon constructive service.'

If the affidavit is not required by the statute to state
the fact of non-residence it need not be stated therein, but
may be established by other evidence.^ But it does not
follow that a judgment against one who is not a non-
resident would be valid because an affidavit conforminof
to the statute has been filed. The fact of non-residence
may still be a jurisdictional fact that must be established
to give the court authority to act.^ And some of the
cases go further, and hold that under such a statute this
jurisdictional fact need not be proved at all, in the case
in which the judgment was rendered, if it in fact existed.
The judgment may be upheld, when attacked, by then
proving the fact of non-residence.*

It must be borne in mind, however, that it is so held
solely because the statute does not require that the affidavit
shall allege the fact of non-residence. If it were required
by the statute to be stated in the affidavit, the allegation
could not be dispensed with and the defect could not be
supplied by other evidence however convincing.^ The
filing of such an affidavit as the statute requires is a con-
dition precedent to an authorized publication. Without
it a judgment rendered on such notice is void, and the
making of such an affidavit, after the publication, is of
no efiect.^

As this mode of conferring jurisdiction is purely stat-
utory whatever the statute requires can not be dispensed
with.'' But it has been held that the affidavit is not a

^Ante, sees. 13, .32, 33 ; Taylor r. Ormsby, 6G la. 110; 23 N. W. Rep. 288 ;
Sweeley r. Van Steenburg, 69 la. 697 ; 26 N. W. Rep. 78.

'' Taylor v. Ormsby, 66 la. 110 ; 23 N. W. Rep. 28S ; Carnes v. Mitchell,
82 la. 601 ; 48 N. W. Rep. 941.

' Taylor ?'. Ormsby, 66 la. 110; 23 N. W. Rep. 288; Sweeley t». Van
Steeuburg, 69 la. 697 ; 26 N. W. Rep. 78.

* Sweeley v. Van Steenburg, 69 la. 697 ; 26 N. W. Rep. 78.

s Carnes v. Mitchell, 82 la. 601 ; 48 N. W. Rep. 941.

« Barber v. Morris, 37 Minn. 194 ; 33 N. W. Rep. 559.

' Barber v. Morris, 37 Minn. 194 ; 33 N. W. Rep. 5.59 ; Anderson v. Co-
18



274 MEANS OF ACQUIRING JURISDICTION.

part of the judgment roll, and that it will be presumed in
aid of the jurisdiction of the court that such affidavit was
made and that an affidavit of publication and a recital
thereof in the record are conclusive.^

Under most of the statutes it is not enough to show that
the party is a non-resident. It must appear, in addition,
that the cause of action is such that constructive service
of notice is proper.^ And in some of the cases it is held
that such a cause of action must be shown by a verified
complaint.^ This, however, is based upon an express stat-
utory provision requiring the complaint to show a suffi-
cient cause of action. Under a statute requiring the ap-
plication for the order to be based upon the complaint,
duly verified and filed, the complaint must be on file at
the time the order is made,* And must show the cause of
action to be one upon which publication is authorized.^

In some of the states the facts authorizing the service
by publication, including the nature of the cause of action,
must appear by affidavit. But even where this is the
case, if the complaint is verified, it may be referred to in
the affidavit for the necessary facts as to the cause of ac-
tion. And in some of the states where a verified com-
plaint, together with the affidavit, is required to be made
the basis of the application, the cause of action need not
be shown by the affidavit, but the court may look to the
complaint to ascertain whether a cause of action appears
or not.^ But if the complaint is not verified, the affidavit
must state the facts showing a cause of action against the
defendant. It is not enough to state, in the language of
the statute, that the plaintifiF has a good cause of action

burn, 27 Wis. 562 ; Cummings v. Tabor, 61 Wis. 185, 189 ; 21 N. W.
Rep. 72.

1 In re Newman, 75 Cal. 213, 220 ; 16 Pac. Rep. 887 ; ante, sec. 23, p.
142 ; Hardy v. Beaty, 19 S. W. Rep. 778.

* Crouch V. Martin, 47 Kan. 313 ; 27 Pac. Rep. 985.

3 Bryan v. University Pub. Co., 112 N. Y. 382; 19 N. E. Rep. 825.

* Cummings v. Tabor, 61 Wis. 185, 189; 21 N. W. Rep. 72.

5 Cummings v. Tabor, 61 Wis. 185, 188; 21 N. W. Rep. 72 ; County of
Yolo V. Knight, 70 Cal. 431 ; 11 Pac. Rep. 662.



CONSTRUCTIVE SERVICE OF PIIOCESS. 275

against him.' The same rule applies to the allegation that
the party against whom publication is sought is a neces-
sary party to the action.^ But this clause of the statute
is liberally construed in favor of jurisdiction, and an im-
perfect and very general statement of the cause of action
is held to be sufficient to uphold the judgment upon a col-
lateral attack.^ It is not always sufficient in making the
showing of facts required to follow the language of the
statute.* In most of the states, in order to justify the
giving of notice by publication, it must appear by the af-
fidavit that the defendant is a non-resident, or that he can
not, after due diligence, be found within the state. And
it is not sufficient to state generally that he can not, after
due diligence, be found. The facts showing what was
done in the effiDrt to ascertain the defendant's where-
abouts must be stated so that the court may determine
whether the acts done constitute due diligence or not.' If,
however, any facts are stated tending to show that due
diligence was used, this gives the court jurisdiction to de-
termine whether such facts are sufficient or not. And if
the court holds them to be sufficient, however erroneous
the ruling may be, a judgment founded upon the notice
given under it is not void, and can not be impeached col-
laterally.^ And the statement of a fact inferentially and
insufficiently, wnll not render the judgment void, but void-
able only.^ What is necessary to constitute due diligence

1 County of Yolo v. Knight, 70 Cal. 431 ; 11 Pac. Rep, 662; Ricketson
V. Richardson, 26 Cal. 153; Forbes v. Hyde, 31 Cal. 352; Bacon i'. John-
son, 110 N. C. 114 ; 14 S. E. Rep. 508.

2 Id.

^ Shippen v. Kimball, 47 Kan. 173 ; 27 Pac. Rep. 813.

* Ligare v. California S. R. R. Co., 76 Cal. 610; 18 Pac. Rep. 777;
County of Yolo v. Knight, 70 Cal. 431 ; 11 Pac. Rep. 662.

* Ricketson v. Richardson, 26 Cal. 149, 153; Ligare v. California S. R.
R. Co., 76 Cal. 610; 18 Pac. Rep. 777; Jewett v. Jewett, 2 N. Y. Sup.
250; Landrue v. Lund, 38 Minn. 538; 38 N. W. Rep. 699; McDonald v.
Cooper, 32 Fed. Rep. 745; Alderson v. Marshall, 7 Mont. 288; 16 Pac.
Rep. 576 ; Beach v. Beach, 6 Dak. 371 ; 43 N. W. Rep. 701 ; McCracken
V, Flanagan, 127 N. Y. 493 ; 28 N. E. Rep. 385.

« Belmont v. Cornen, 82 N. Y. 256.

» Long V. Fife, 45 Kan. 271 ; 25 Pac. Rep. 594.



276 MEANS OF ACQUIRING JURISDICTION.

can not be stated with any definiteness. Each case must
necessarily be governed by its own facts and circum-
stances. And the opinions of the different courts on the
subject are so niucli dependent upon the different views
of individnal judges, that they furnish us no safe guide.
"Where it is made necessary by statute to show that the
defendant has property within the state, it .is held that the
statement thereof in the aifidavit should be direct, and
specify the property.^ And that it is not sufficient to state
it on information and belief.^ This may be so as to the al-
legation of property within the state, but as to some of the
facts required to be stated, it is frequently impossible to
state them in any other way. Therefore, it is not neces-
sary that such matters should be stated positively. They
maybe stated on information and belief.^ If the residence
of the defendant is known to the plaintiff", it must be
stated where a copy of the summons or notice is required
to be sent to the defendant, or if the place of residence is
unknown, it must be so stated.* In some cases it is held
that if the affidavit states that the defendant is a non-resi-
dent, and the place of his residence is given, no effort to
find him within the state need be shown.'^ But the state-
ment that the defendant is out of the state must, in order
to avoid the necessity of alleging diligence to find him
within the state, be direct and positive.'' And in other
cases it is held that the mere allegation of non-residence
is not enough, as non-residence is not inconsistent with
the actual presence of the defendant within the state.''
But it has been held that where non-residence is alleged,

1 McDonald v. Cooper, 32 Fed. Rep. 745, 751 ; Feikert r. Wilson, 38
Minn. 341 ; 37 N. W. Rep. 585.

' Feikert v. Wilson, 38 Minn. 341 ; 37 N. W. Rep. 585.

3 Colton V. Rupert, 60 Mich. 318 ; 27 N. W. Rep. 520. But see on this
point Waggoner v. Fogelman, 13 S. W. Rep. 729.

* Ricketson v. Richardson, 26 Cal. 149, 154 ; Fetes v. Volmer, 8 N. Y.
Sup. 294.

» Anderson v. Goff, 72 Cal. 68 ; 13 Pac. Rep. 73 ; McDonald v. Cooper,
32 Fed. Rep. 745, 748; Furnish v. Mullan, 76 Cal. 646; 18 Pac. Rep. 854.

^ Carleton v. Carleton, 85 N. Y. 313.

^ Carleton v. Carleton, 85 N. Y. 313 ; Pike v. Kennedy, 15 Or. 420; 15



CONSTRUCTIVE SERVICE OF PROCESS. Zi t

and, also, that the " defendants can not, after due dili-
gence, be fonnd within the -state," and summons can not
be served personally, " because of such non-residence," the
affidavit is sufficient.^ It must appear from the affidavit
either tliat due diligence has been used to find the defend-
ant within the state, or that an effort to find him would be
of no avail.^ Allegations in the affidavit, made on in-
formation and belief, are proper to be considered.'' And
the return of the proper officer made on a summons issued
in the case, tending to show diligence and a failure to find
the defendant, may be made part of the affidavit by refer-
ence to it.^

In most of the statutes it is required that the affidavit
shall state briefly the object and general nature of the
complaint or petition. But less strictness has been en-
forced by the courts under this clause of the statute, prob-
ably, than any other. A very general statement of the
nature and objects of the action has been held to be suffi-
cient.*

As a rule, the affidavit must disclose the name of the
party against whom publication is asked, and the order
and publication must run in his name. But under some
of the statutes defendants may be proceeded against by
publication by fictitious names, or as unknown, upon a
showing by a sworn complaint or affidavit that the name
of the party is unknown, and can not, after due diligence,
be ascertained. Under sucii a statute, it is not sufficient
to show that the unknown defendant is a non-resident.
It must also be shown that the name of such defendant is un-
known and can not be ascertained upon diligent inquiry.^

If the affidavit falsely states that the plaintiff has a

Pac. Rep. 6o7 ; Fetes v. Yolmer, 8 N. Y. Sup. 294 ; McCracken v. Flan-
nagan, 127 N. Y. 493; 28 N. E. Rep. 38i5.

' Kennedy r. The N. Y. L. Ins. & Trust Co., 101 N. Y. 487; 5 X. K.
Rep. 774; Pike v. Kennedy, 15 Or. 420; 15 Pac. Rep. ()l>7.

'' Pike V. Kennedy, 15 Or. 420 ; 15 Pac. Rep. 6'^7 ; McDonald v. Cooper,
32 Fed. Rep. 745, 7.50.

' Howe Machine Co. v. Pettibone, 74 N. Y. 08.

* Adams v. Cowles, 95 Mo. 501 ; 8 S. W. Rep. 711.

* Bleidom r. Pilot Mountain Coal, etc., Co., 15 8. W. Rep. 737.



278 MEANS OF ACQUIRING JURISDICTION.

cause of action when he has not, and judgment is re-
covered on the constructive notice given under it, the
judgment will be set aside on the ground that it was
fraudulently obtained.' But this right must rest upon the
doctrine that a judgment recovered by fraud may be set
aside, and not on the ground that the court had not juris-
diction to render it. Such a doctrine as the latter would
leave it open for any one to attack a judgment by show-
ing that some of the jurisdictional facts shown by the affi-
davit did not exist, without any reference to any intention
of the party making the affidavit to misstate the fact or
to obtain an undue advantage. And certainly the juris-
diction of the court could not be attacked collaterally on
any such ground.'^

The affidavit of non-residence must relate to the time
of the order for publication, and must be made at or near
the time the order is made.^ But it is sufficient if made
so near the time as to render it reasonably certain that no
change could have taken place affecting the right to have
such publication.*

It is not necessary that the affidavit be made at the time
of the filing of the complaint or petition, or that the aver-
ment of non-residence shall relate to that time.^

In some cases the statute provides for the filing of the
complaint or declaration after proof of publication is
made. In such cases it is held that if the complaint is
filed before the affidavit of publication is made, a judg-
ment rendered thereon is void.^ In others, the affidavit
can not legally be made until after the complaint is filed.
But the date appearing in or upon the order is not con-
clusive as to the time, and it may be corrected to conform

^ Dunlap V. Steere, 92 Cal. 344 ; 28 Pac. Rep. 563.

"^ Lawson v. Moorman, 85 Va. 880 ; 9 S. E. Rep. 150.

^ Forbes v. Hyde, 31 Cal. 342, 351 ; People v. Huber, 20 Cal. 81 ; Crotn-
bie V. Little, 47 Minn. 581 ; 50 N. W. Rep. 823.

* Crombie v. Tattle, 47 Minn. 581 ; 50 N. W. Rep. 823 ; Cornwall v.
Falls City Bank, 18 S. W. Rep. 452.

^ Bogle V. Gordon, 39 Kan. 31 ; 17 Pac. Rep. 857.

« Nugent V. Nugent, 70 Mich. 52; 37 N. W. Rep. 706; Steere v. Vander-
berg, 67 Mich. 530; 35 N. W. Rep. 110.



CONSTRUCTIVE SERVICE OF PROCKSS. 279

to the facts, or it may bo shown that it was in fact filed
at the proper time to give the court Jurisdiction.^

A misnomer of either the pUiintiff' or defendant in the
afiidavit renders a judgment under it void where there is
no appearance.^

Where an affidavit is defective, but not void, it is held
in some of the cases that it may be amended after judg-
ment, for example, by making an affidavit on information
and belief positive.^ Or by changing an inferential or in-
sufficient statement of a fact to a direct and positive state-
ment.* But no amendment could be allowed by the addi-
tion of a material allegation entirely omitted from the
affidavit, because such an affidavit would, as we have seen,
be absolutely void, the court would have no jurisdiction,
and the judgment would be void. Jurisdiction can not
be conferred after an act is done, and thus breathe life
into a void judgment.

That to serve process personally would be difficult and
expensive, is no ground for publication even under a stat-
ute authorizing constructive service where personal service
is " impracticable." ^

Except in those states in which a cause of action au-
thorizing constructive service must be shown by the com-
plaint, the affidavit is the sole basis of the publication, or
the order therefor, and the insufficiency of the complaint
is no ground for setting aside notice."

c. Officer's return as basis for 'publication. Sometimes the
facts, or a part of them, necessary to authorize construct-
ive service of process may, or must, under statutory pro-
visions, be shown by the return of the proper officer on
the summons or citation. If so, the return of the officer
takes the place of the affidavit, to that extent, and must
bring the case within the statute in order to justify the

1 Voelz V. Voelz, 80 Wis. 504 ; 50 N. W. Rep. 398.

' Newman v. Bowers, 72 la. 465 ; 34 N. W. Rep. 212.

2 Harrison v. Beard, 30 Kan. 532 ; 2 Pac. Rep. 632.

* Long V. Fife, 45 Kan. 271 ; 25 Pac. Rep. 594.

* Batt V. Procter, 45 Fed. Rep. 515.

« Mehrhoff v. Diffenbacker, 31 N. E. Rep. 41.



280 MEANS OF ACQUIRING JURISDICTION.

publication of the summons, and thereby give the court
jurisdiction. •

d. The oi^der for publication. — The order for publication
must conform to the statute and recj[uire every act to be
done that is necessary to constitute a sufficient notice by
publication.- If the statute requires the summons to be
mailed to the defendant as well as published, the order
must direct such mailing or the judgment will be void.^
And usually it is required to recite the facts contained in
the affidavit as a basis for the order.* The order is the
authority for making the service, whatever it may be, and
if it provides for a service not authorized, the fact that a
proper service, not called for by the order for publication,
is actually made, can not cure the defect.'^

In some of the states, it is required by the statute that
the order shall require the defendant to appear on a day
named, for example, on the first day of the next term of
the court. And under such a statute, it is held that an
order requiring an appearance at an earlier day is void
and notice in conformity thereto gives no jurisdiction.^
But in most of the states a specific day for the appearance
is not required to be fixed, but the defendant must appear
and answer within a certain number of days after publica-
tion. Under such statutes, it has been held that a judg-
ment rendered upon default before the expiration of the
time within which the defendant is required to answer is
not void but erroneous merely and can not be attacked
collaterally.^ And in some proceedings the filing of the
petition is held to give the court jurisdiction, and in such

' Eliot r. McConnick, 144 Mass. 10; 10 N. E. Rep. 709 ; Guaranty Trust,
etc., Co. V. Buddington, 27 Fla. 215; 9 Sou. Rep. 2ol.

■•^ Ricketson r. Richardson, 26 Cal. 149, 153; Park r. Higbee, 24 Pac.
Rep. 524; Fetes v. Volmer, 8 N. Y. Sup. 294.

3 Park V. Higbee, 24 Pac. Rep. 524 ; Fetes v. Volmer, 8 N. Y. Sup. 294 •
Beaupre v. Keefe, 79 Wis. 436 ; 48 N. W. Rep. 59G.

* Ricketson r. Richardson, 26 Cal. 149, 153.

^ Beaupre v. Keefe, 79 Wis. 436; 48 N. W. Rep. 596.

« Payne's Adm'r r. Ilardesty, 14 S. W. Rep. 348; Brownfield v. Dyer, 7
Bush, 505; Bird r. Norquist, 46 Minn. 318; 48 N. W. Rep. 1132.

' In re Newman, 75 Cal. 213 ; 16 Pac. Rep. 887.



CONSTRUCTIVE SERVICE OF PROCESS. 281

cases the giving of notice for too short a time does not
affect such jurisdiction or render an order made under it
void.^

Where the statute requires that the publication be
made in a paper most likely to give notice to the defend-
ant, the fact that it is such a paper need not be set out in
the order.^

Under a statute requiring an order for publication, or
service out of the state, at the option of the plaintiff, the
order need not be in the alternative, but may order either
kind of service. The plaintiff should exorcise his option
before the order is made, and if he does not, an order for
either kind of service allowed will be valid.^

Where the fixing of the time for publishing notice is
left to the court, an order fixing such time will be upheld,
even in case of a direct attack, unless injustice appears to
have been done.* And such an order will render a judg-
ment valid, however short the time fixed may be, as
against a collateral attack.

e. The publication. — As to what the publication shall be,
the statutes of the several states difter. In some a publi-
cation of the summons is required, in which case the serv-
ice is the same, as respects the form of the notice, as per-
sonal service. In other states a notice containing the
substance of the summons, or a citation, is required. In
either case the requirements of the statute must be sub-
stantially complied with. But mere irregularities in the
form of the notice, or the publication of it, while they
may be ground for setting aside the service, or of a direct
attack upon it in some other form, will not render it void
or deprive the court of jurisdiction.^ In some cases, how-
ever, a defect in" the service that would be a mere error if
the summons were personally served, for example, in case

' Mohr V. Manierre, 101 U. S. 417.
'^ Calvert v. Calvert, 15 Colo. 390; 24 Pac. Rop. 1043.
3 In re Field, 131 N. Y. 184 ; 30 N. E. Rep. 48.
* Osgood V. Osgood, 153 Mass. 38; 2(i N. K. Rep. 413.
^ Post, sec. 40; Webster i>. Daniel, 14 S. W. Rep. 550; Adams r. Cowles,
95 Mo. 501; 8 S. W. Rep. 711 ; 1 Black on Judg., sec. 223.



282 MEANS OF ACQUIRING JURISDICTION.

of a misnomer of tlie defendant, in the summons, will ren-
der the judgment void in case of publication.'

The question whether the publication of the notice, or
summons, for a shorter time than that required by law, is
sufficient to give the court jurisdiction, and is only sub-
ject to a direct attack, as an irregularity, is not free from
doubt. In case of personal service of -summons, it is well
settled that a service for too short a time before judgment
is taken is a mere defect, and does not render the judg-
ment void.^

There is no good reason why the same rule should not
apply in case of a publication of a summons regular in all
other respects. And it has been held, in some of the
cases, that a judgment rendered under such circumstances

' Skelton v. Sackett, 91 Mo. 377 ; 3 S. W. Rep. 874 ; Newman v. Bowers,
72 la. 465 ; 34 N. W. Rep. 212.

" It is very clear from the above case that, when a party is sued by a
wrong name, and service of the writ is actually made on the person in-
tended, and he does not appear and plead in abatement, that the judg-
ment rendered in such case is not void. But a distinction exists be-
tween such a case and a case where the suit is against a non-resident,
where the only notice is by publication of notice, and no appearance is
made. In the former case, where there is a mistake in the name, and
the writ is served on the right party, he is thereby informed that he is
the person meant; and, to take adA^antage of the misnomer, he must
appear and plead the misnomer in abatement.

" In the latter case, when a wrong name is used in an order of publi-
cation, the party really intended receives no such notice that he is the
party intended as one who is personally served with a writ, which service
designates him as the person meant to be sued. While the service of
the writ in the former case is a demonstration that the person upon
whom it is served is the person intended to be sued, in the latter case
notice by publication is a proceeding against the name, and, to give
such notice as the service of a writ imparts, it should be correctly set
forth, and, if it is not so set forth, it is ineffectual ab a notice. It would
seem that an order of publication of notice against J. Smith would im-
part the same notice to James, Joseph, John, Jonathan, or Jackson
Smith, but it would not impart to any one of them notice of the fact
that he was the J. Smith intended by the notice, while the service of a
writ upon any one of them would inform him that he was the Smith
intended. These views seem to be supported by the cases of Gardner
V. State, 4 Ind. 632; Entrekin v. Chambers, 11 Kan. 368; Bray r. Mc-
Clury, 55 Mo. 128." Skelton v. Sackett, 91 Mo. 377 ; 3 S. W. Rep. 875.

^ Ante, sees. 13, 23; Freeman on Judg., sec. 126; Webster v. Daniel, 14
S. W. Rep. 550.



CONSTRUCTIVE SERVICE OF PROCESS. 283

is not voicl.^ But there are cases holding that a summons
requiring the defendant to answer within a shorter time
than that fixed by the statute is void.^ And it must be re-
membered that in certain kinds of proceedings, for exam-
ple, in petitions for the sale of property by a guardian, the
filing of the petition vests the court with jurisdiction, and
the fact that the notice was not published for the length of
time required will not render the proceedings of the court
void as to the ward.'' But the true reason for distinguishing
proceedings of this kind from the publication of a summons
in an ordinary adversary proceeding is that the proceeding
is not adverse to the ward.^ It is held, however, that where



Online LibraryJohn D. (John Downey) WorksCourts and their jurisdiction; a treatise on the jurisdiction of the courts of the present day, how such jurisdiction is conferred, and the means of acquiring and losing it → online text (page 29 of 93)