Collins v. Ryan — 32 Barb. 647

Majority

p. 647

Collins and others vs. Ryan and others.

Headnote

The act authorizing substituted service of subpoena and complaint to be made in certain cases, under an order of the court, where personal service cannot be made, {Laws of 1863, p. 974,) requires that the judge who makes the order shall be satisfied that the defendant sought to be served resides in this state and cannot be served, for the reasons stated, before he can act in the matter; and being satisfied, he may make the order.

Such judge is, consequently, authorized and required to decide whether or not sufficient facts are shown to confer jurisdiction; and if he decides affirmatively, that question becomes res judicata.

After judgment has been obtained against a defendant, upon a substituted service, made under a judge’s order, and supplementary proceedings have ' been commenced against the defendant, and proceeded with, without any objection being made by the defendant to the validity of the judgment; he

p. 648

appearing upon such proceedings, with his counsel; he cannot move to vacate the judgment on the ground that jurisdiction of his person had not heen acquired, and that consequently the judgment was void. •

UPON substituted service of the summons and complaint .in this action, made pursuant to an order of a judge of this court, judgment was entered by default, in favor of the plaintiff on .the 3d of December, 1858, for $437.92. In March, 1859, supplementary proceedings against the defendant Ryan were commenced, in which he appeared, with counsel, and. such proceedings were continued from time to time, and proceeded with, until May 7, 1859, so far as appears, without objection to the validity of the judgment. On the 15th of .March, 1860, the defendant Ryan moved, at a special term, to vacate that judgment, on the ground that jurisdiction of his person had not been , acquired in the suit, and .the judgment'was.consequently void.

.-.From., thé papers read on the. motion it appeared that, on an affidavit of George A.' Moore, a deputy sheriff, sworn to on the 10th of November, 1858, .and sfating that.he had made proper and diligent efforts to serve the summons and complaint on the defendants; that he had made inquiries at the residences of said defendants, as tp where they were; that the families of the defendants, at such residences, stated they were not able to tell where the defendants could be found; that the residence of' Ryan was at 248 West 26th street, in the city of New York, and the residence of the other defendant at No. 376 in 7th avenue in said city; and that by and after due and proper and diligent effort by him, the deponent, the defendants could not be found; an order, dated 10th November, 1858, was made by a justice of this court, that said summons and complaint be served by leaving copies thereof at the residence of each of said defendants, with some person of proper age, &c., and service was made accordingly. An affidavit of the defendant Ryan (not disputed) stated that on the 6fh of September, 1858, he sailed from the city of New York, in company with the other defendant, for San Fran

p. 649

cisco, in California, by way of the Isthmus of Panama, and arrived there on the 30th of September, or 1st of October, and remained in California until January 5, 1859, when he sailed for Hew York.

The motion was denied, and from the order denying it the defendant appealed.

By the Court,

The defendants’ counsel has very elaborately and ably argued that the affidavit of the deputy sheriff only shows that the defendant’s residence or domicil, occupied by his family, was in Hew York; not that he personally was residing there, and as it is furthermore affirmatively shown that the defendant was actually absent from, and (as it is argued) consequently not residing in Hew York, within the meaning of the statute, no jurisdiction was acquired, to make said order of Hovember 10th.

The statute under which the order was made (Laws of 1853, p. 974,) so far as applicable to this case, provides that whenever it shall satisfactorily appear to any judge of the supreme court, by affidavit of any deputy sheriff authorized to serve any process or paper for the commencement of any action, that proper and diligent effort has been made to serve such process or paper on any defendant residing in this state, and that such defendant cannot be found, so that the same cannot be made personally by such proper diligence and effort, such judge may, by order, direct the service of any summons &c. to be made, by leaving a copy thereof at the residence of the person to be served, with some person of proper age, &c.

As I understand and interpret this act, it requires that the judge who makes the order for substituted service must be satisfied -that the defendant sought to be served resides in this state and cannot be served, for the reasons stated, before he can act in the matter; and being satisfied, he may make the order. . Such judge is consequently authorized and required to decide whether or not sufficient facts are shown, to

p. 650

confer jurisdiction; and if he decides affirmatively, that question becomes res judicata. He may have misjudged, and acted upon insufficient evidence; and for that reason the order may have been erroneously granted, and might be, upon proper application, set aside; but it will not be void.

[New York General Term,

November 5, 1860.

Sutherland, Bonney and Hogeboom, Justices.]

It is to be observed that this defendant does not allege or pretend that the whole amount of this judgment is not justly owing by him; nor state any equitable grounds for relief. He does not even deny that he was residing in Hew York, at the time this order was made, but merely states that he was absent from the state from the 6th of September, 1858, until (probably) the latter part of January, 1859, when he returned, and (as it appears from his examination) occupied the same house which the deputy sheriff stated to be his residence, and where his family was living when this summons and complaint were served. I think it may well be-held that the defendant was residing in the state, within the meaning and intent of the statute, when this order for substituted service was made; but I prefer to decide the question on the ground first stated.

The order appealed from should -he affirmed, with ten dollars costs.