Van Wyck v. Hardy

By the Court.

For the purposes of this appeal it must be assumed that the amendments, directed to be made by the court at special term, have been made, and the question is now presented, whether the court had power to make them. Of this there can be no doubt; section 173 of the code, expressly provides that, the court may, before or after judgment, amend any pleadings, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of -a party, or a mistake in any other respect. The defects referred to, fall within that provision , and it was the object of the amendment merely to correct the omission of names in the summons, and to add a verification by the infant himself of his petition for the appointment of a guardian ad litem, for that suit, instead of that made by the plaintiff’s attorney.

But if such power did not exist, these defects were not such as to invalidate the judgment. There is nothing in the code requiring the summons to be filed with the complaint, and it must be assumed in the absence of proof to the contrary, that, the summons served on the parties, whether personally or by publication, contained the names of all the parties, and that .such summons or a copy thereof, was filed with the judgment. It was not necessary to file it before, § 281.

Nor am I aware of any law or rule of practice that makes it absolutely necessary that a petition for the appointment of a guardian ad litem, for an infant over fourteen years, should be verified by the infant himself or at all. It is sufficient that it is Ms act, and in this case, the affidavit of the plaintiff’s attorney satisfactorily established that fact.

It is not claimed that the petition was not in fact signed by the infant, the objection only reached the degree of evidence required to satisfy the court that it was so signed; and, in my opinion, the sufficiency of the proof by which the court were satisfied of the authenticity of the signature, can not be questioned. The objection taken tó the appointment of the guardian ad litem was, therefore, not well founded.

The other objections to the proceedings, are not covered by the amendments directed by the orders, and will be separately considered.

1. It is insisted that the omission of the words, “in the said city of New York,” after “ Humber 13 Chambers Street,” in the summons published in the Evening Post, is fatal. This position is untenable. Assuming that there can strictly be but one summons in an action, and that a copy of it must be published, yet the requirement is satisfied by the publication of a copy substantially correct, in all its material particulars. A literal and exact copy in every respect is not requisite. The omission of unnecessary words can not vitiate the proceedings. In the case before us, the summons as published, required the service of a copy of the answer on the plaintiffs attorney, at his office, Humber 13 Chambers Street, without specially stating, that such office and street are in the city of New York, and the date was a part thereof. There can be no doubt, that the street referred to, would be understood to be in that city. It could have referred to no other, in the connection in which it was used. The code provides, that a summons shall require the defendant to “serve a copy of his answer on the person whose name is subscribed to the summons, at a place within this State, to be therein specified, in which there is a post-office.” The date of the summons is at New York, and the -fact stated therein, that the complaint has been filed in the office of the clerk of the county, in the city of New York, fairly shows that the office and street referred to are in that city, and in my opinion the place for the service of the answer was sufficiently specified within the meaning and requirements of the code.

2. Another objection is raised on the ground that the summons and complaint were not deposited in the post-office till the fourth day after the entry of the order, which directed the same to be deposited forthwith. ¡No definition of that term is given in the code. Although, when used in a rule of court, it has been held to mean within twenty-four hours after the time when the act required is directed to be done, no such construction has been given to the term when used in a statute. Webster, among other definitions, defines it to mean “without delay.” That is a reasonable meaning, and so understood it must be left to the decision of the court that is to pass on the question, to determine under the circumstances of each case, whether the requirement in that respect has been complied with; and we agree with the court below that there was such compliance in the present case. There were more than twehty defendants on whom the service was to be made, and the time that elapsed between the making of the order and the deposit, was not unreasonable, nor sufficient to charge the plaintiff’s attorney with delay. At all events, there was not such delay as to deprive the court of jurisdiction over the party on that account alone.

3. The only other objection remaining to be noticed is, that “ the affidavit on which the order for publication was made, and the order made thereon, are defective and irregular, in that the non-residence m this State, and the actual place of residence of the defendants, Thomas J. Turpin and Drusilla E. L. Dillard, are not sufficiently proved or stated.”

It is conceded that those defendants are proper parties to this action, and it is not claimed or pretended that they or either of them were not in fact non-residents, nor that they could have been found within this State, nor is it denied that it was competent for the court to direct service of the sum

The question to be determined, therefore, is, whether there is such a defect in the affidavit on which the order was made, as to make the judgment founded thereon inoperative and void as to those defendants, for want of jurisdiction over them. The code provides that<r when the person on whom the service of the summons is to be made, can not, after due diligence, be found within this State, and that fact appears by affidavit to the satisfaction of the court, or the judge thereof, or of the county judge of the county where the trial is to be had,” and it in like manner appears . . . “that he is a proper party to an action relating to real property in this State, such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases : ” enumerating among others, “when he is not a resident of this State, but has property therein, and the court has jurisdiction of the subject of the action,” and also, “where the subject of the action is real or personal property in this State, and the defendant has or claims.a lien or interest, actual or contingent therein, or the relief demanded consists wholly or in part in excluding the defendant from any interest or lien therein.”

It will be seen that the above provisions do not require it to be shown that the defendants were non-residents. The action is brought for the partition of real estate in this State, in which they had an actual interest, and to which they were proper parties. It was only necessary, therefore, that it should “ appear by affidavit to the satisfaction of the court or judge, they could not after due diligence be found within this State.”

The affidavit on which the order in question was founded, was made by one of the plaintiffs. He states, “ that the defendant, Thomas I. Turpin, resides at or near Grenville Court House aforesaid, as deponent is informed and believes,” and, “thatas deponent is informed and believes said defendant, Brasilia L. E. Dillard, resides in Union district, in said State of South Carolina, at or near Union Court House,” and “further says, that after due and diligent search, and inquiry by this deponent, the said defendants, named in the body of the affidavit,

These allegations tend to show the fact required to be shown. It is true, that they are only stated on information and belief, but the statement that the defendants can not be found within this State, is so made, after due and diligent inquiry, made by him.

When the place of a person’s residence is unknown, inquiries in relation to it must necessarily be made of others, and the only evidence that can be produced to the court, must, from the nature of the case, be based on information, derived on such inquiry, and the weight and effect to be given to such information, must depend on the knowledge and credibility of the party from whom it is derived. It is, therefore, no objection to the affidavit in question, that the facts therein are stated on information and belief merely.

It shows substantially that the information of the deponent as to those facts, was obtained on inquiry, and that his belief was founded on such inquiry, and a diligent search. It would unquestionably have afforded more satisfactory proof of those facts, if it had been shown what measures had been taken, and what acts of diligence had been used, and, particularly, what inquiries had been made, and of whom, and the means of knowledge, possessed by such persons, in relation to the residence of those defendants, and of the practicability of a personal service on them in this State; so that the court or judge might be better able to determine whether in fact due diligence had been used, and it may be conceded that no order ought to be made without proof of that character; but it can not be said such specification is absolutely necessary, nor can we say that the affidavit in question is of no legal effect.

It afforded some evidence to show that the defendants could not be found within this State, and as in the language of the code,” that fact appeared by affidavit, to the satisfaction of the court,” it was sufficient to confer jurisdiction to make the order, and we are not authorized on this appeal, to question the sufficiency of that affidavit.

The purchaser was, therefore, properly directed to complete his purchase, and the order of the supreme court must be affirmed.

Order affirmed with costs.