Warren v. Tiffany — 9 Abb. Pr. 66

Majority

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WARREN a. TIFFANY.

Supreme Court, Seventh District;

Special Term, September, 1858.

Headnote

Service by Publication.^[1] —Requisites of Affidavit.—Omission to issue Attachment.

An affidavit to obtain an order for service of summons by publication, showing that the defendant is a resident of the State, and that the deponent is informed that he is absent from the State, and that he believes that he is absent for the

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purpose of defrauding his creditors, without showing grounds for that belief, is insufficient; and an order granted on such an affidavit is irregular, and it and all subsequent proceedings should be set aside on motion.

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That the order for publication did not direct that a copy of the summons and complaint be mailed, is likewise a fatal irregularity.

The plaintiff’s omission to issue an attachment against the property of a defendant, in an action commenced in such manner, is a ground for setting aside the judgment.

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Motion to set aside order for service of summons by publication, and all subsequent proceedings.

The action was on a promissory note. The plaintiff proceeded by publication of summons, and entered judgment, which the defendant now moved to set aside for irregularity. The facts relative to the proceedings are stated in the opinion.

Mr. Gardner, for the motion.

S. Gooding, opposed.

The action was commenced by publication of the summons, in pursuance of an order of the county judge of ■Ontario county, bearing date May 24tb, 1858. The affidavits upon which the order was made, show that the defendant was at the time a resident of this State, and do not show that such residence was neither known to the party applying for the order, nor could with reasonable diligence be ascertained by him ; but on the contrary, they do show expressly that the defendant’s residence was in the town of Bristol, in the county of Ontario. It appeared by the affidavit of the sheriff, which was presented to the judge when applied to for the order, that after the summons was put into his hands to be served, he went to the defendant’s residence in said town of Bristol, and was then informed by his family and other persons residing near the residence of the defendant, that he had been absent from home ■since about the 1st of November previous, and had not since been home. That when last heard from, he was at the city of Nashville, in the State of Tennessee. The sheriff’s affidavit

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concludes as follows : “ And that deponent believes that said Tiffany is absent from the State of Hew York for the purpose of defrauding his creditors.” The action was brought to recover the amount of a promissory note made by the defendant. There is nothing in the papers tending to show that the defendant had departed from the State with intent to defraud his creditors, or to avoid the service of summons, or that he kept himself concealed within the State with the like intent, except this extract from the sheriff’s affidavit, which is no evidence whatever. It is not the statement of any fact, but is simply the belief of the sheriff, unsupported by any fact whatever touching the occasion or intent of the defendant’s absence. The affidavits wholly failed, therefore, in showing a case for the order for publication. The order did not direct a copy of the summons and complaint to be deposited in the post-office, directed to the defendant at his place of residence, as required by section 135 of the Code. The motion papers show that no attachment against the property of the defendant has been issued in the action.

The plaintiff proceeded upon the order by publication of the summons for six weeks in the two newspapers designated in the order, after which he procured the usual order of reference, and entered judgment upon the report of the referee for $258.38 damages, with costs of the action.

The order for publication, and all the subsequent proceedings, including the judgment, were clearly irregular, and must be set aside. The affidavits did not show a case for commencing the action by publication, and for that reason the order was unwarranted. In case evidence had been given showing that the defendant’s absence was with intent to defraud his creditors or to avoid the service of a summons, it should have directed a copy of the summons and complaint to be deposited in the post-office, directed to the defendant at his place of residence. The omission to do that was a fatal irregularity. Again, the judgment was irregular in consequence of the plaintiff’s omitting to attach the defendant’s property, as it could in no event affect any property of the defendant, except such as had been taken by virtue of an attachment regularly issued in the action.