§ 8.01-316.Service by publication; when available.

Chapter 8. Process · Article 4. Who to Be Served · Last amended 2010 · Last verified July 16, 2026

In one sentenceSection 8.01-316 authorizes an order of publication, outside condemnation cases, when an affidavit establishes the defendant is a nonresident or foreign entity, that diligence failed to locate the party, or that the sheriff could not complete service after twenty-one days, and separately covers unknown-party and mass-defendant scenarios.

Full Text of § 8.01-316

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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.

End

Plain-English Summary

Publication is a last-resort way of giving notice, and Section 8.01-316 spells out exactly when a Virginia court may resort to it, apart from condemnation actions, which the section excludes entirely. The core path runs through an affidavit by the party seeking service, stating one or more specific grounds: that the party to be served is a foreign corporation, foreign unincorporated association or carrier, or nonresident individual; that diligence has been used without effect to locate the party; or that the party's last known residence was in the jurisdiction where service is sought and the sheriff has held the process for twenty-one days without being able to serve it.

Two further grounds do not depend on an individual defendant's whereabouts at all. An order of publication may issue when a pleading identifies persons whose names are unknown but who may have an interest in property being divided or disposed of, describing that interest and naming them generally as "parties unknown." It may also issue when more than ten defendants have already been served and a pleading or exhibit shows the unserved defendants share like interests with those who were served.

Who may sign the order depends on which ground applies: the clerk of the court may enter an order of publication under the nonresident/diligence/sheriff's-return grounds or the unknown-parties ground, but only the court itself may enter one under the mass-defendant ground. Every affidavit must state the party's last known post-office address, or state that it is unknown, and the cost of publication is paid initially by the party seeking service, though it may later be recoverable under §17.1-601.

Frequently Asked Questions

What grounds justify an affidavit for an order of publication?

That the party is a foreign corporation, foreign unincorporated association or carrier, or nonresident individual; that diligence was used without success to locate the party; or that the sheriff held the process for twenty-one days at the party's last known residence and could not serve it.

Can unknown parties be served by publication?

Yes, when a pleading states that unnamed persons may have an interest in property being divided or disposed of, briefly describes that interest, and names them generally as "parties unknown."

Is publication available in condemnation cases?

No. The section expressly excludes condemnation actions from its scope.

Who signs the order of publication — the clerk or the court?

For the nonresident/diligence/sheriff's-return grounds and the unknown-parties ground, the clerk may enter the order; for the mass-defendant ground involving more than ten served defendants, only the court may enter it.

Who pays for the publication?

The party seeking service pays initially, though the cost may later be recoverable under §17.1-601.

Amendment History

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.

Source & verification. Section text and amendment history are reproduced verbatim from the Code of Virginia, published by the Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026. · Official source

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