A. Except in condemnation actions, an order of publication may be entered against a defendant in the following manner:
1. An affidavit by a party seeking service stating one or more of the following grounds:
a. That the party to be served is (i) a foreign corporation, (ii) a foreign unincorporated association, order, or a foreign unincorporated common carrier, or (iii) a nonresident individual, other than a nonresident individual fiduciary who has appointed a statutory agent under § 64.2-1426; or
b. That diligence has been used without effect to ascertain the location of the party to be served; or
c. That the last known residence of the party to be served was in the county or city in which service is sought and that a return has been filed by the sheriff that the process has been in his hands for twenty-one days and that he has been unable to make service; or
2. In any action, when a pleading (i) states that there are or may be persons, whose names are unknown, interested in the subject to be divided or disposed of; (ii) briefly describes the nature of such interest; and (iii) makes such persons defendants by the general description of "parties unknown"; or
3. In any action, when (i) the number of defendants upon whom process has been served exceeds ten and (ii) it appears by a pleading, or exhibit filed, that such defendants represent like interests with the parties not served with process.
Under subdivisions 1 and 2 of this subsection, the order of publication may be entered by the clerk of the court. Under this subdivision such order may be entered only by the court. However, any orders not properly entered, but processed by a clerk prior to July 1, 2010, shall be deemed to have been properly entered.
Every affidavit for an order of publication shall state the last known post office address of the party against whom publication is asked, or if such address is unknown, the affidavit shall state that fact.
B. The cost of such publication shall be paid initially by the party seeking service; however, such costs ultimately may be recoverable pursuant to § 17.1-601.
Code 1950, § 8-71; 1952, c. 522; 1977, c. 617; 1982, c. 384; 1983, c. 467; 1996, c. 352; 1999, c. 353; 2010, c. 827.
Notes of Decisions
Cited in
41
cases (
4 in the last 5 years), 1978–2026 · leading case:
Dennis v. Jones, 393 S.E.2d 390 (Va. 1990).
Dennis v. Jones, 393 S.E.2d 390 (Va. 1990).
· cites it 8× “” Code § 8.01-316 provides, as pertinent, that “an order of publication may be entered against a defendant in the following manner: 1.”
Carlton v. Paxton, 415 S.E.2d 600 (Va. Ct. App. 1992).
· cites it 8× “One of these three ways requires from the party seeking service an affidavit stating at least one of the following: (1) that the party sought is a nonresident; (2) that due diligence has been used without effect to locate this party; or (3) that the last known residence of this…”
Khanna v. Khanna, 443 S.E.2d 924 (Va. Ct. App. 1994).
· cites it 6× “The final decree was entered August 10, 1989, and wife first learned of the annulment of the marriage in a letter sent to her by the Immigration and Naturalization Service in February 1992.”
Baker v. Commonwealth, 504 S.E.2d 394 (Va. Ct. App. 1998).
· cites it 2× “1-264(A) provides in pertinent part as follows: If after reasonable effort a party other than the person who is the subject of the petition cannot be found or his post-office address cannot be ascertained, whether he is within or without the Commonwealth, the court may order…”
STB Mktg. Corp. v. Zolfaghari, 393 S.E.2d 394 (Va. 1990).
· cites it 2× “2d 390, 393 (1990) (decided today) (“diligence,” as used in Code § 8.01-316(1) (b) setting forth requirements for order of publication, de *145 fined).”
MacLeod v. MacLeod, 383 A.2d 39 (Me. 1978).
“§ 402 (1964), the defendant has called this court’s attention to Va.Code §§ 8.01-316 and 8.01-320. Those provisions merely authorize service by publication when the defendant is otherwise subject to the jurisdiction of Virginia courts.”
Earp v. Dynasty Hair Salon, Inc., 48 Va. Cir. 292 (Fairfax Cir. Ct. 1999).
· cites it 3× “In evaluating the plaintiff’s efforts to locate the defendant under Virginia Code § 8.01-316, the Court explained that “diligence means ‘devoted and painstaking application to accomplish an undertaking’.”
Augusta Cnty. Dep't of Soc. Servs. v. Unnamed Mother, 348 S.E.2d 26 (Va. Ct. App. 1986).
· cites it 2× “Code § 8.01-316(2), our publication statute, does not permit service by publication against a father who is a resident of the Commonwealth and whose identity and address are known or reasonably ascertainable.”
Richardson v. Parris, 435 S.E.2d 389 (Va. 1993).
· cites it 2× “In support of their motion, the Parrises correctly pointed out that as a prerequisite to the validity of the order of publication, it was necessary, under the method attempted, for the plaintiff County of Orange, or someone on its behalf, to file an affidavit stating that the…”
Wallace v. Zoller, 52 Va. Cir. 80 (Winchester Cir. Ct. 2000).
· cites it 2× “2d 390 (1990) (decided today) (“diligence,” as used in Code § 8.01-316(l)(b) setting forth requirements for order of publication, defined).”
Finn v. Fancher, 37 Va. Cir. 449 (Stafford Cir. Ct. 1996).
· cites it 2× “” In September 1987, plaintiff filed a suit against defendant for damages resulting from an automobile accident on January 16, 1986.”
Jones v. Priest, 79 Va. Cir. 39 (Fairfax Cir. Ct. 2009).
· cites it 7× “It is unknown if Defendants or their successors are living; thus, Plaintiff properly described Defendants as “Ernest L. Priest and Ruth E.”
— Va. Code Ann. § 8.01-316(1) — 2 cases
STB Mktg. Corp. v. Zolfaghari, 393 S.E.2d 394 (Va. 1990).
“2d 390, 393 (1990) (decided today) (“diligence,” as used in Code § 8.01-316(1) (b) setting forth requirements for order of publication, de *145 fined).”
Dennis v. Jones, 393 S.E.2d 390 (Va. 1990).
“” Code § 8.01-316 provides, as pertinent, that “an order of publication may be entered against a defendant in the following manner: 1.”
— Va. Code Ann. § 8.01-316(1)(a)(iii) — 1 case
Richardson v. Parris, 435 S.E.2d 389 (Va. 1993).
“In support of their motion, the Parrises correctly pointed out that as a prerequisite to the validity of the order of publication, it was necessary, under the method attempted, for the plaintiff County of Orange, or someone on its behalf, to file an affidavit stating that the…”
— Va. Code Ann. § 8.01-316(1)(b) — 2 cases
— Va. Code Ann. § 8.01-316(2) — 1 case
Augusta Cnty. Dep't of Soc. Servs. v. Unnamed Mother, 348 S.E.2d 26 (Va. Ct. App. 1986).
“Code § 8.01-316(2), our publication statute, does not permit service by publication against a father who is a resident of the Commonwealth and whose identity and address are known or reasonably ascertainable.”
— Va. Code Ann. § 8.01-316(2009) — 1 case
Jones v. Priest, 79 Va. Cir. 39 (Fairfax Cir. Ct. 2009).
“It is unknown if Defendants or their successors are living; thus, Plaintiff properly described Defendants as “Ernest L. Priest and Ruth E.”
— Va. Code Ann. § 8.01-316(A)(1)(b) — 2 cases
— Va. Code Ann. § 8.01-316(A)(1)(c) — 2 cases
— Va. Code Ann. § 8.01-316(A)(3) — 1 case
— Va. Code Ann. § 8.01-316(b) — 1 case
Khanna v. Khanna, 443 S.E.2d 924 (Va. Ct. App. 1994).
“The final decree was entered August 10, 1989, and wife first learned of the annulment of the marriage in a letter sent to her by the Immigration and Naturalization Service in February 1992.”
— Va. Code Ann. § 8.01-316(l)(b) — 4 cases
Khanna v. Khanna, 443 S.E.2d 924 (Va. Ct. App. 1994).
“The final decree was entered August 10, 1989, and wife first learned of the annulment of the marriage in a letter sent to her by the Immigration and Naturalization Service in February 1992.”
Wallace v. Zoller, 52 Va. Cir. 80 (Winchester Cir. Ct. 2000).
“2d 390 (1990) (decided today) (“diligence,” as used in Code § 8.01-316(l)(b) setting forth requirements for order of publication, defined).”
Finn v. Fancher, 37 Va. Cir. 449 (Stafford Cir. Ct. 1996).
“” In September 1987, plaintiff filed a suit against defendant for damages resulting from an automobile accident on January 16, 1986.”
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