§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).
Notes of Decisions
Rearden Fam. Trust v. Wisenbaker, 65 P.3d 1029 (Haw. 2003).
· cites it 10× “” HRS § 634-24 provides for service “outside the State or by registered mail” in cases arising under HRS § 634-23. We note that HRS § 634-23 relates to “an action or proceeding involv[ing] or concern[ing] any property, tangible or intangible, within the jurisdiction of a circuit…”
Citicorp Mortg., Inc. v. Bartolome, 16 P.3d 827 (Haw. App. 2000).
· cites it 5× “In Hawaii, “due diligence” is a requirement unique to HRS § 634-23, 5 which provides for service by publication.”
Calasa v. Greenwell, 633 P.2d 553 (Haw. App. 1981).
· cites it 4× “When Calasa filed his motion for publication of summons in late 1975, HRS § 634-59(2) 5 (now numbered HRS § 634-23(2)) read: If a defendant is unknown or does not reside within the State or cannot for any reason be served with process within the State, and the facts shall appear…”
Hustace v. Kapuni, 718 P.2d 1109 (Haw. App. 1986).
· cites it 7× “12 HRS § 634-23 provides in pertinent part: Joinder of unknown persons; service when defendant unknown or absent.”
The Nature Conservancy v. Nakila, 671 P.2d 1025 (Haw. App. 1983).
“Pursuant to Hawaii Revised Statutes (HRS) § 634-23 (1976), service on unknown persons was made by publication in the Maui News.”
Yamano v. Halekulani Corp., 560 P.3d 477 (Haw. App. 2024).
· cites it 8× “HRS §§ 634-23 and -24, referenced infra, are the sections pertinent to service by certified mail.”
Khaleghi v. Indymac Venture, LLC, 504 P.3d 1053 (Haw. App. 2022).
· cites it 6× “" They argued: (1) the circuit court lacked personal jurisdiction over them because HRS § 634-23 gave the circuit court in rem jurisdiction over the Property only; (2) they were not properly served with the foreclosure complaint; (3) their due process rights were violated by the…”
In the Interest of TW, 248 P.3d 234 (Haw. App. 2011).
“If personal service cannot be effected within the State, service of the notice may be made as provided in section 634-23 or 634-24. We requested that the parties be prepared at oral argument to address the extent to which HRS § 571-61(b)(3) applies to this case.”
Ellis v. Raffetto (Haw. 2010).
· cites it 4× “Therefore, HRS § 634-23(2) permitted service by publication on petitioner.”
Contrades v. Reis, 145 P.3d 910 (Haw. App. 2006).
“n persons generally and in such case, after service upon the persons summoned, known and unknown, the court shall have jurisdiction to proceed as though all persons interested were in being and personally served, but any adjudication shall, as regards a defendant served pursuant…”
In Re Tw, 248 P.3d 234 (Haw. App. 2011).
“If personal service cannot be effected within the State, service of the notice may be made as provided in section 634-23 or 634-24. We requested that the parties be prepared at oral argument to address the extent to which HRS § 571-61(b)(3) applies to this case.”
— Haw. Rev. Stat. § 634-23(1) — 1 case
Hustace v. Kapuni, 718 P.2d 1109 (Haw. App. 1986).
“12 HRS § 634-23 provides in pertinent part: Joinder of unknown persons; service when defendant unknown or absent.”
— Haw. Rev. Stat. § 634-23(2) — 6 cases
Citicorp Mortg., Inc. v. Bartolome, 16 P.3d 827 (Haw. App. 2000).
“In Hawaii, “due diligence” is a requirement unique to HRS § 634-23, 5 which provides for service by publication.”
Calasa v. Greenwell, 633 P.2d 553 (Haw. App. 1981).
“When Calasa filed his motion for publication of summons in late 1975, HRS § 634-59(2) 5 (now numbered HRS § 634-23(2)) read: If a defendant is unknown or does not reside within the State or cannot for any reason be served with process within the State, and the facts shall appear…”
Hustace v. Kapuni, 718 P.2d 1109 (Haw. App. 1986).
“12 HRS § 634-23 provides in pertinent part: Joinder of unknown persons; service when defendant unknown or absent.”
Yamano v. Halekulani Corp., 560 P.3d 477 (Haw. App. 2024).
“HRS §§ 634-23 and -24, referenced infra, are the sections pertinent to service by certified mail.”
— Haw. Rev. Stat. § 634-23(3) — 1 case
Ellis v. Raffetto (Haw. 2010).
“Therefore, HRS § 634-23(2) permitted service by publication on petitioner.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.