More v. Thayer — 10 Barb. 258

Majority

p. 258

New-York General Term,

December, 1850.

Edwards and Mitchell, Justices.

More, executor, &c. vs. Thayer, public administrator, &c.

Headnote

As a general rule, a suit is not commenced, where the service of the summons is by publication, until the expiration of the time for publication prescribed by the code.

Yet, where an attachment has been issued against the property of the defend

p. 259

ant, and his goods have been taken under it, after which he dies, the court acquires sufficient jurisdiction to enable it to put the suit in such a condition, that the plaintiff can enforce his provisional lien, notwithstanding a summons has not been served. And the court has sufficient control of the action, to substitute the personal representative of the deceased, in his place, as a party defendant, in order that the summons may be duly served.

This was an appeal from an order made af a special term, vacating and setting aside an order of revival against the personal representative of a deceased defendant, (Duncan McEwing,) and all subsequent proceedings, for irregularity. The defendant Duncan McEwing having died after the issuing of an attachment, and after a partial publication service of the summons, an order of revival against his personal representative was obtained, and further proceedings were taken, when the present defendant moved to set aside the order, &e.

James Moncrief, for the plaintiff.

W. G. Sterling, for the defendant.

The ground upon which this motion was decided at the special term was, that the summons had not been served at the time of the decease of the defendant Duncan McEwing, jun. We concur in the opinion which.was expressed upon the decision of the motion, that, as a general rule, a suit is not commenced, where the service of the summons is by publication, until the expiration of the time for publication prescribed by the code. But in addition to the provision contained in section 127 of the code, as to the commencement of civil actions, it is also provided in section 139, that from the time of the allowance of a provisional remedy in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. In this case, an attachment, which is one of the provisional remedies mentioned in the code, had been issued against the property of the defendant McEwing, and his property had been taken under it, before his decease. It seems, then, that although there had not

p. 260

been a service of the summons, within the meaning of the code, still the plaintiff had acquired a provisional lien upon the defendant’s property, which would become complete, to the amount of his judgment, provided he recovered a judgment in the action. We think that this was a right which should be preserved, and which the code, in the section above cited, intended to preserve. And, although the summons had not been served, still the court had acquired sufficient jurisdiction to enable it to put the suit in such a condition that the plaintiff could enforce his provisional lien; and it has sufficient control of the action to substitute the personal representative of the deceased in his place, as a party defendant, in order that the summons may be duly served. We think that the order made at the special term, should be reversed, but without costs.^[1]

(a) (a) Edmonds, P. J., did not hear the argument in this cause, and took no part in the decision.