Davis v. Fox — 1 A.D. 403

Majority

p. 403

Achilles E. Davis, Appellant, v. Richard K. Fox, Respondent.

Headnote

Libel—prior to September 1,1895, an attachment could not issue in an action for libel — a judgment in such an action could not be taken by default, except upon personal service of the summons — Code Oivil Procedure, §§ 438, subd. 6 ; 635; 1217; 3343; subd. 9.

Prior to the amendment of section 685 of the Code of Civil Procedure, which took effect September 1, 1895, an attachment could not issue in an action brought to recover damages for the publication of a libel; and, as no attachment could issue in such an action, no judgment against a resident defendant could be entered therein, upon a defaultin appearing, unless the defendant had been personally served with the summons.

Appeal by the plaintiff, Achilles E. Davis, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of August, 1895, granting the defendant’s motion to set aside the judgment entered against the defendant by default upon service of the summons by publication nursuant to an order of the court.

W. A. P'wrrmgton and James A. Lamb, for the appellant.

Prnirl May, for the respondent.

The action was brought to recover damages for a libel published by defendant against the plaintiff. The publication took place on

p. 404

the 4th day of March, 1893, and the Statute of Limitations would have run against the cause of action on the 4th day of March, 1895. On the 15th day of February, 1895, a summons in the action was delivered to the sheriff of Xew York county to serve upon defendant, who resided in that county. The sheriff was unable to find the defendant in the county so as to serve the process upon him, and so returned, and thereupon, upon due proof, a justice of this court made an order for service of the summons by publication pursuant to subdivision 6 of section 438 of the Code of Civil Procedure.

The defendant did not appear in the action, and in due time his default was taken, the damages were assessed and judgment for a substantial amount was entered against him, which he moved to vacate for the reason that the action being for a libel no attachment could be issued, and, therefore, no judgment could be entered on any other than personal service. A libel is an injury to the person. (Code Civ. Proc. § 3343, subd. 9.) The judgment in this action was entered on the 17th day of July, 1895. At that time an action for an injury to the person was not mentioned in section 635. The Code forbids the entry of a judgment for a sum of money only in any action except one of those specified in section 635. (Code Civ. Proc. § 1217.) Therefore, although service by publication could be made against a resident defendant in an action for libel under circumstances such as existed here, no judgment could be entered against him by default. It was a plain defect in the law which has since been cured. Whether the law goes merely to the remedy, and, therefore, the change in it which took effect on the 1st day of September, 1895, is now available to the plaintiff, is a point on which we express no opinion. It is sufficient to say that, tinder the law as it stood in July, there was no authority to enter a judgment upon default in appearing in actions of this kind upon service by publication only against a resident where no attachment was or could be granted, and for that reason the order must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Williams and Patterson, JJ., concurred. ■

Order affirmed, with ten dollars costs and disbursements.