Barnard v. Heydrick — 49 Barb. 62

Majority

p. 62

Barnard vs. Heydrick.

Headnote

A summons, issued by an attorney, with his name printed at the end thereof, is “ subscribed” by him, within the requirements of the Code.

It is allowable, on application for orders of publication, and of a like nature, to read affidavits made and entitled in another action.

In an action for the foreclosure of a mortgage, the non-residence of the defendants need not be shown, to entitle the plaintiff to an order for publication. It" is sufficient, to show that the defendants cannot, after due diligence, be found within this state so as to enable the plaintiff to serve the summons upon them.

It is to be presumed, from the fact of making an order for publication, that the affidavits recited therein afforded satisfactory evidence to the court of the requisite facts, as to the plaintiff’s inability to serve the summons on the defendants, within this state. Hence, the omission so to state in the order, does not affect its validity.

An order directed to be served by mail need not be/M before the papers are mailed. The previous deposit of the papers is, at most, an irregularity, that can be remedied at any time, by filing the order nunc pro tunc.

After an answer has been put in, for an infant, by his guardian ad litem, and judgment has been entered, the regularity of the guardian’s appointment cannot be questioned.

p. 63

THIS was an application by a purchaser of mortgaged premises, at a sale under a decree of foreclosure, to be discharged from his purchase.

Wm. H. Arnoux, for the motion.

Barnard, Rice & Burnett, contra.

This is an application on behalf of a purchaser of mortgaged premises sold under a judgment of foreclosure and sale, to be discharged from his purchase, on the following grounds :

1. That the summons is not subscribed by the plaintiff, or his attorney.

2. That the affidavits on which the order for publication was granted, is insufficient.

3. That no copy of the order appointing a guardian ad litem of the non-resident infant defendant was served, according to the terms of the order.

These grounds will be examined in the order they are above stated.

I. The first objection is based on the fact, appearing by the judgment roll, that the names of the plaintiff’s attorneys are printed at the end of the summons forming part of the roll. This, it is claimed, is not a compliance with the requirements of the Code, which provides that “ the summons shall be subscribed by the plaintiff, or his attorney,” and shall require the defendant to “ serve a copy of his answer on the person whose name is subscribed to the summons.”

It then becomes necessary to determine whether a summons, issued by an attorney, with his name printed at the end thereof, is subscribed by him, within the meaning of that provision.

Two cases were referred to, on the argument of the motion, in which the question has been considered ; and I have been' unable, after a careful examination, to find any other; and

p. 64

in those the learned justices who examined it arrived at different conclusions. The first was the case of The Farmers’ Loan and Trust Company v. Dickson, reported in 9 Abb. Pr. 61 , and also in 17 How. Pr. 477 , which was decided by Justice Ingraham, at special term, in the first district. A motion was there made by a purchaser, to he relieved from a sale, on the ground, among others, that the name of the attorney was printed, at the end of the summons ; and the learned justice, after considering two other objections that were made to the proceedings, and stating that one of them could be remedied by filing an affidavit of the service of the summons on one of the defendants, nunc pro tunc, says, in relation to that now under consideration : “ The summons should have been signed by the plaintiff, or Ms attorney, (§ 128,) and the printed name of the attorney was a nullity. As the copy served was correct, the plaintiff might also file a copy properly signed, nunc pro tunc.” The other case was that of The Mutual Life Ins. Co. v. Ross, reported in a note, at p. 260, of 10 Abb. Pr., in which the defendant moved to set aside the summons served on him, on the ground that the name of the plaintiff’s attorney was printed at the end thereof. On the argument of that motion, the decision of Judge Ingraham was referred to and commented on by counsel, and the report of the case closes with saying that “ B. D. Smith, J. denied the motion, with costs, upon the ground that a printed subscription is a substantial compliance with the statute, and the objection was technical, and if there was a defect, it was immaterial.”

Neither of these learned justices appears to have assigned the reasons for the conclusion at which he arrived. I am, therefore, obliged to examine the question embarrassed by their difference of opinion, without the benefit of the aid which those reasons would have afforded. In doing this, it may be useful to ascertain the scope and extent of the decision of Justice Ingraham. He treats the words “ subscribe” and “ sign,” as synonymous; and when he says that the summons

p. 65

should have been signed by the plaintiff, or his attorney, and that the printed name of the attorney was a nullity, he clearly indicates that such signature should have been in the proper •hand writing of such attorney. If this was his meaning, he was, in my opinion, mistaken. Previous to the adoption of the Code, it was provided by the Eevised Statutes, (2 B. S. 278, § 9,) that all writs and process issued out of any court of record should, before the delivery of the same to any officer to be executed “ be subscribed or indorsed with the name of the attorney, solicitor or other-person,” by whom the same was issued; and yet, in the same title, at page 286, section 70, it is declared that “ if any attorney, or solicitor, shall knowingly permit any person, not being his general law partner, or a clerk in his office, to sue out any process, or to prosecute or defend any action in his name, such attorney, or solicitor, and every person who shall so use the name of any attorney, or solicitor, shall severally forfeit to the person against whom such process shall have been sued out, or such action prosecuted or defended, the sum of fifty dollars.”

This last provision is still in force, and by exempting the general law partner, and the clerks of an attorney, from the penalty imposed for using his name in issuing process, and prosecuting and defending actions, it is clearly implied that it may be so used by them, by his permission and authority.

Although the Eevised Statutes provide that the process “ shall be subscribed or indorsed with the name of the attorney, solicitor or other person,” issuing the same, and the requirement of the Code is, that the summons shall be subscribed by the plaintiff or his attorney, the difference in the phraseology does not, in my opinion, justify the conclusion that a difference in practice was intended.

It will be observed that the use, by a clerk, of the attorney’s name, appears to be authorized under the provision above referred to, in actions in which the attorney himself has no interest or connection; and it has,T believe, been the general

p. 66

practice of attorneys to allow a clerk in their office to sign their name to process issued by them. The authority given to the clerk by the attorney, in such a case, makes it his act, and he is responsible therefor to the- court and the party proceeded against, and I have found, no case where the practice has been called in question. There certainly appears no reason, in principle, why it should not be permitted. There are many instruments which the law requires to he subscribed or signed by the party to be bound thereby, and yet a subscription, or signature, by him personally, is not necessary. Thus, the statute regulating the exécution of wills, after expressly providing that every will “ shall be subscribed by the testator,” recognizes a signing of his name by another person as a compliance with that provision, by a subsequent requirement that “ every person who shall sign the testator’s name to any will, by his direction, shall write his own name as a witness to the willand it was distinctly decided in Robins v. Coryell, ( 27 Barb. 556 ,) after a full and careful examination of'the question, that the writing of the testator’s name to a will, by another person, in his presence and by his direction, is a subscription by him, within the meaning of that statute; and an opinion to the same effect, is expressed by Chancellor Walworth, in Chaffee v. Baptist Missionary Convention, (10 Paige, 91,) and by Hand, J. in Butler v. Benson, ( 1 Barb. 533 .) So the statute of frauds, requiring certain agreements to be in writing, and to be signed or subscribed by the party to be charged therewith, is satisfied by the signature or subscription of the name of such party thereto, by another person duly authorized to make it.

If such is the rule applicable to statutes in tl^e case of wills and other written instruments requiring the subscription of parties, I am unable to discover any reason why a different construction should be given to that in relation to legal process.

The views thus presented lead us to the conclusion that a subscription of the name of an attorney issuing a summons

p. 67

is not required to be made by himself personally, but that it may be made by another with his authority ; and assuming this to he correct, it seems to follow that his name may be printed, as a substitute for his written 'signature.

A party may, in the ordinary transactions of business, become bound by any mark or designation he thinks proper to adopt and use, for his name. It was decided, in Brown v. The Butchers and Drovers’ Bank, ( 6 Hill, 443 ,) that Brown was liable as an indorser, by an indorsement of the figures, “ 1, 2, 8,” made by him in lead pencil, no name being written thereon ; it also appearing that he could write. In that case the-court instructed the jury that if they believed the figures were made by Brown, as a substitute for his proper name, intending thereby to bind himself as indorser, he .was liable ; and this ruling was sustained on review. So it has been held by the general term in this district, in the case of Mechanics’ Bank v. Sullivan, heard in December, 1862, (but not reported, I believe,) that a notice of the protest of a note, sent to an indorser by a notary with his name printed at the end of it, was sufficient.

It is a common practice for a person who is unable to write his name to make his mark ; and the making of such mark is held to be a good sighing or subscription, within the requirements of the law, by a testator, to a will. (Baker v. Dening, 8 Ad. & Ellis, 94. Jackson v. Van Dusen, 5 John. 144 . Chaffee v. The Baptist Miss. Convention, 10 Paige, 85.)

In the case of Baker v. Dening, above cited, the court refused to permit an inquiry whether the person making his mark could write or not, adopting the rule that the requisite of signing by the statute of frauds was satisfied by the mark of the devisor, irrespective of his ability to write.

’ Under our statute, it is required that a subscribing witness “ shall sign his name as a witness and it was claimed in the case of Morris v. Kniffin, ( 37 Barb. 336 ,) among other things, “ that a marksman cannot be, and is not, a sub- „ scribing witness within the meaning of the statute but the

p. 68

Supreme Court, at general term in the third district, (Justice Hogeboom giving the opinion,) held that where a witness makes his mark, instead of writing his name, it is still a signing of his name, or subscription, within the meaning of the statute ; and he refers, with approbation, to the decision by Surrogate Bradford, in the case of Meehan v. Rourke, ( 2 Bradf. 385 ,) where he discusses the question, and concludes that such a mode of attestation is a sufficient compliance with the statute. (See also Jackson v. Van Dusen, supra.)

So it was held by the lord chancellor, in England, in Harrison v. Harrison, (8 Ves. 185,) that a will was sufficiently executed where. one witness only subscribed his name, and the two others attested it “by setting their marks respectively.” And in that case it was shown that there had been a great many cases where it had been held to be sufficient for a “ marksman” to be a witness. (See also Addy v. Grix, Id. 504.)

It appears also to bó settled that where a person is in the habit of using documents with his name printed thereon, this will be his signature, within the meaning of the statute of frauds. (2 Parsons on Contracts, 289. See also Sanderson v. Jackson, 2 Bos. & P. 238; Schneider v. Morris, 2 M. & S. 286.) In the last case, Le Blanc, J. said : “ Suppose the defendant had stamped the bill of -parcels with his own name, would not that have been sufficient ? Such a stamping, as it seems to me, if required to be done by the party himself, or by his authority, would afford the same protection as sigúing.”

There are also many cases where printing is substituted for writing, in instruments which under our statute are required to be in writing. It is the general practice for deeds, or conveyances of real estate, and bills of sale of personal property, to be printed ; and it is very common to use printed agreements for the sale, of both real and personal estate, and their validity is conceded ; yet the statute declares that all

p. 69

conveyances of land, and all contracts for the sale of lands, or a note or memorandum, thereof, shall be in writing, subscribed by the party by whom the conveyance or sale is made, and also makes it necessary for a note or memorandum of every contract for a salé of goods, when the price thereof is fifty dollars or more, to be in writing, except in cases of part payment of the purchase money, or delivery of part of the goods. (See 2 R. S. 134, § 6 : Id. 135, § 8 ; Id. 136, § 3.)

Assuming, then that such instruments, when printed, are “ in writing,” within the requirements of these provisions of the statute, is there any good reason why printing an attorney’s name may not be permitted, as and for his signature to a summons or other legal process P In this connection I will refer to the fact that the Code provides for the service of a summons on a defendant by delivering a copy thereof without the necessity of showing him the original, (§-134;) and also authorizes a copy to be inserted in the judgment roll. (§ 281.) This appears to me a material fact in determining the question now under consideration. It is by the service of the summons that the action is commenced, and jurisdiction over the party is acquired ; and if the service of a printed copy (for there is- nothing to prohibit such a copy,) is sufficient for that purpose, and such a copy may properly form a part of the judgment roll, there is no valid reason for requiring the paper spoken of, and denominated the summons (but which may never be filed, but be forever kept in the pigeon holes of an attorney’s desk) to be subscribed with the written name of the attorney, and for holding a printed' subscription to be a nullity.

The name of the attorney issuing the summons is as effectually disclosed when it is printed, as if it were written ; and his responsibility to the defendant and to the court, in either" case, is the same. It would be necessary in any proceeding against him, to show that he was in fact the attorney issuing the process ; and although there might be more difficulty in making that proof when his name was printed than there

p. 70

would be if it were written by himself, or by another with his authority, that difficulty exists in all cases of agency, and is not sufficient, on the ground of public policy, or of any inconvenience to suitors, to require a different or a more stringent rule in case of legal process than in any other case affecting the private rights of individuals.

The different considerations above presented, lead me to the conclusion that the summons in this case was subscribed, within the requirements of the Code, and that the first ground of objection to the proceedings is, consequently, not well taken.

II. The second objection involves the sufficiency of the affidavit on which the order of publication .was. granted.

It appears by the judgment roll, that the order purports to have been founded on an affidavit, entitled in this action, made by David B. Burnett, one of the plaintiffs’ attorneys, and on another made by Jeremiah Johnson, Jr. in a different •action, against the defendants- in this, commenced by E. Burtis Brainard as plaintiff. The affidavit of Mr. Burnett, after setting forth the nature of the action, and showing that all of the defendants proceeded against as absentees, are proper parties, states “ that the said defendants are, as deponent is informed and believes, non-residents of this state, and are now absent therefrom, and cannot with due diligence be served with summons herein ; that as deponent is informed, the defendants, Jesse A. Heydrick, Elizabeth Heydrick, and --Heydrick, reside at Franklin, in the state of Pennsylvania, and that the defendants Charles H. Heydrick, and Anne his wife, reside at Utica, in the said state of Pennsylvania.” This was verified on the 13th day of May, 1866. The affidavit of Mr. Johnson was made on the 7th day of the said month of May. He stated positively, as a fact, ' that the said defendants, at that time, were non-residents of this state, and resided at the place mentioned in the affidavit of Mr. Burnett. It is claimed on behalf of the purchaser, that Mr. Johnson’s affidavit, being entitled in a different suit,

p. 71

could not be used in this. In that, I think he is mistaken. The Code requires that it shall appear “by affidavit to the satisfaction of the court or a judge granting the order, that the person on whom the service of the summons is to be made, cannot, after due dilligence, be found in this state and I see no good reason why that may not be shown by an affidavit properly made, and forming a part of the records of the state, although not in the particular action-in which the order is asked. That may, in many cases, afford more satisfactory evidence of .the fact, than any proof that could otherwise be obtained. It appears to be the practice, in England, to read affidavits in one suit, that have been used in another, on certain applications ; (see Langston v. Wetherell, 14 Mees. & W. 104;) and I am of opinion it is allowable on an application for orders of publication, and of a like nature. The objection to it appears to be a matter of form, merely, and not of substance'.

I shall therefore hold that the affidavit of Mr. Johnson was properly before the court, and that it, with the facts stated by Mr. Burnett, authorized the order. In so holding, I agree with the counsel of the purchaser, that the allegation made by Mr. Burnett, on information and belief merely, is not evidence, but the absence of the defendants from the state is, as I understand his affidavit, positively stated by him ; and that is a fact which affords at least some proof that they could not be served .therein, with the summons. This case being an action -for the foreclosure of a mortgage, the non-residence of the defendants was not necessary to be shown. It was sufficient to establish the fact satisfactorily, that they could not, after due diligence, be found within this state, so as to enable the plaintiff to effect the service of the summons on them, and that the case came, (as it clearly did,) within the fourth subdivision of section 135, which is distinct from the third subdivision, having reference to non-residents of this state. It is to be presumed, from the fact of making the order, that the

p. 72

affidavits recited therein, afforded satisfactory evidence to the court of those requisites, and the omission so to state, in the order, does not affect its validity.

[Kings Special Term,

June 25, 1866.

I am therefore of opinion that the second ground of objection to the proceedings is not well founded.

III. The third objection is based on the fact that a copy of the order nisi appointing the guardian ad litem of the non-resident infant defendant, was deposited in the post office two days before the order and the affidavits on which it was founded were filed. It appears, however, that the order was made"on the day of the deposit; and the omission to file it until a subsequent day, does not invalidate the proceedings. According to our present practice, an order and the affidavits on which it was founded, must, in many cases, be taken to a distant county, and it is often impossible to file them in the proper office on the same day the order is made. That, however, is effectual, when filed, from the time it is granted. The previous deposit is, at most, an irregularity that can be remedied at any time, by filing the order time pro tunc. This, however, is not necessary. Uo guardian was ever appointed on the application of the infant, or of any relation on his behalf, and the original order nisi became effectual. The original appointment of the guardian, has, moreover, been confirmed by the court. An answer was put in by him for the infant, and judgment has been entered. Under such a state of facts, the regularity of the appointment of the guardian, cannot now be questioned. (Rogers v. McLean, 31 How. Pr. 279 .)

It follows that the last ground on which the purchaser asks relief, is not available for that purpose.

I am thus, after a full consideration, brought "to the conclusion that the application of the purchaser must be denied.

Lott, Justice.]

Cases cited

Farmers' Loan & Trust Co. v. Dickson 9 Abb. Pr. 61 N.Y. Sup. Ct. p. 64
Farmers' Loan & Trust Co. v. Dickson 17 How. Pr. 477 N.Y. Sup. Ct. p. 64
Robins v. Coryell 27 Barb. 556 N.Y. Sup. Ct. 1858-06-07 p. 66
Morris v. Kniffin 37 Barb. 336 N.Y. Gen. Term 1861-12-02 p. 67
Rogers v. McLean 31 How. Pr. 279 N.Y. p. 72