Young v. Fowler

VAN BRUNT, P. J.

The attachment in this action having been granted in September, 1889, on the 29th of August, 1893, a motion was made to vacate the same, upon the ground that the defendant had never been served in the action, and the court, had never obtained jurisdiction of the defendant, and upon other *876 grounds, which it is not necessary to mention here. This motion having been denied, from the order thereupon entered this appeal is taken.

It is claimed that the court never acquired jurisdiction, because there were but six publications of the summons, whereas, under the 'Code as it now exists, seven publications are necessary in order to make complete service; and, further, because the affidavit on which the order of publication was granted wras insufficient. In respect to the first ground, the construction claimed by the defendant might very well be adopted; but, in view of the fact that a different practice has prevailed under this provision of the Code for so long a time, this court should not adopt such a construction unless compelled to do so by the imperative language of the statute; and this hardly seems to be the case.

The point that the affidavit upon which the order of publication was granted was insufficient to confer jurisdiction seems to us to be well taken. The order of publication was based upon the supposed fact that the defendant was a nonresident, and that, therefore, the plaintiff had the right to publish the summons as against him. But there was no allegation whatever in the affidavit upon which the order of publication was granted that the defendant was a nonresident. The allegation contained in the affidavit is as follows:

“Deponent further says that, upon a summons, verified complaint, and affidavit, he obtained, on the 6th day of September, 1889, a warrant of attachment against the above-named defendant Elbert Eowler, on the ground of his being a nonresident of the state of New York, to wit, a resident of the state of New Jersey, at Passaic, in said state.”

But it did not appear before the court what the papers were upon which the attachment was granted, or whether there was any sufficient proof in these papers that the defendant was a nonresident; and, in the affidavit upon which the order of publication was granted, there is a mere recital of something that had taken place in the action, and no averment whatever in regard to the nonresidence of the defendant. This clearly was insufficient to confer any jurisdiction upon the court.

The additional allegation that the defendant is of full age, and cannot be found with due diligence within this state, and that the plaintiff would be unable with due diligence to make personal service of the summons upon said defendant within this state, did not in any manner supply the defect above mentioned, because this was clearly insufficient t-o warrant publication, unless such absence from the state was with the intent to defraud creditors or to avoid the service of the summons, and there is no pretense in the papers that such was the fact. It would seem, therefore, that there was no proof whatever by affidavit of the existence of facts justifying the making of the order of publication at the time of the granting of such order. The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.