Mojarietta v. Saenz — 58 How. Pr. 505

Majority

p. 505

COURT OF APPEALS.

Agustin H. Mojarietta and another agt. Thomas Saenz and others.

Headnote

AttaoJvment—omission to publish summons—Second attachment — same affidavit used, on application for—regula/rity of.

Where an attachment was granted May 13, 1879, the time to commence publication expiring on 13th June, the publication not having been made until after that date:

Held, that, by that omission the attachment fell.

The requests of the defendant to suspend proceedings, received June fifth, by telegraph, and June twelfth, by letter, were not a substitute for service of the summons or commencement of publication, nor can they operate as an estoppel to preclude the defendants from setting up want of publication of service.

A mere request to suspend legal proceedings is not sufficient to place the party who complies with it in the same position as if he had gone on with them.

On the 13th of June, 1879, the plaintiffs applied for and obtained a second warrant of attachment, using for the purpose the same summons, complaint and affidavit, upon which the first warrant had been granted, but giving a new undertaking.

Held, that, as the thirty days had not expired when the second attachment was granted, the granting of the warrant gave the plaintiffs thirty days from that time to commence publication.

It seems questionable whether the lapse of thirty days without publica tiori of the summons ousts the jurisdiction of the court or abates th< action, or merely avoids the attachment.

It seems there is no reason why a plaintiff, after having obtained one war rant of attachment and order of publication, may not abandon then

p. 506

and take out a new attachment and order, provided this course is not pursued for the mere purpose of vexation, in which case he would he liable for the damages unnecessarily occasioned.

Several attachments may be issued in the same action to different counties, and if one should be defective or fail for any reason, there is nothing which prohibits an application for a new one.

It is no objection that the same affidavit was used on the application for the second attachment which had been used on the application for the first.

The objection that Rule 85 was not complied with by showing whether any former application had been made, if founded in fact, would be a mere irregularity which, if not regarded in the court below, would not be regarded here. Moreover, it is not specified in the notice of motion, and for that reason was not available to the appellants.

April, 1880.

E. P. Olcott and J. F. Mosher, for plaintiffs, respondents.

Edward Patterson, for defendants, appellants.

This action was brought to recover a balance of account.

On May 13, 1879, a warrant of attachment was granted against the property of the defendants by Mr. justice Dohohue. The time to commence publication under the Code expired on June twelfth. A levy was made only on the individual property of L. A. Rodriquez, one of the defendants, and a few days afterwards the plaintiffs informed the defendants, by letter, of the attachment and levy.

On June fifth the plaintiffs received, in reply to their letter, the following telegram from the defendant L. A. Rodriquez: “Suspend proceedings—I write.” The letter of Rodriquez, referred to in this telegram, was received by the plaintiffs on June twelfth.

The telegram was handed by the plaintiffs to their attorney, who had already obtained an order for publication and were on the point of publishing the summons, but on receipt of the telegram they determined not to publish immediately. They erroneously supposed that the thirteenth would be

p. 507

the last day to commence publication. Discovering their error on the afternoon of the twelfth they presented the original affidavit, warrant of attachment, summons and complaint and a new undertaking to judge Lawrence, sitting in chambers during that month, and laid before him all the facts, whereupon he granted a second warrant.

There had been no change in the accounts between the parties in the interval between the application for the first and second attachments. Under the first order of publication copies of the summons and complaint were mailed on June twelfth and publication cpmmenced on June thirteenth, and afterwards completed.

A second order of publication' was obtained in due time, after the granting of the second attachment, and service thereunder perfected.

The. defendants, appearing for the purposes of the motion only, moved to vacate both attachments. The motion was denied at special term and the order affirmed at general term, whereupon they appealed to the court of appeals.

The first attachment was granted May 13, 1879. The last day for commencing publication of the summons is conceded to have expired on the 12th June, 1879. Bo publication was made until after that date, and by that omission the attachment fell (Code, sec. 638; Taylor agt. Troncoso, 76 N. Y., 599 ).

The requests of the defendant Bodriquez to suspend proceedings received June fifth by telegraph and June twelfth by letter were not a substitute for service of the summons or commencement of publication, nor can they operate as an estoppel to preclude the defendants from setting up want of publication or service. A mere request to suspend legal proceedings is not sufficient to place the party who complies with it in the same position as if he had gone on with them. The motion to vacate the first attachment should, therefore, have been granted.

p. 508

On the 12th of June, 1879, the plaintiffs applied for and obtained a second warrant of attachment from Mr. justice Lawbekce, using for the purpose the same summons, complaint and affidavit upon which the first warrant had been granted, but giving a new undertaking.

The Code provides that a warrant of attachment may be granted to accompany the summons, or at any time after the commencement of the action and before final judgment therein (See. 638). It is provided by section 416 that from the time of granting a provisional remedy the court acquires jurisdiction and has control of all subsequent proceedings, but that this jurisdiction is conditional and liable to be divested, where made by special provision dependent upon some act to be done after the granting of the provisional remedy.

If the second attachment is to be regarded as an entirely new proceeding in a new action, of course there can be no question as to its validity. But, treating it as a second attachment in the same action, it is claimed that by the failure to commence the publication within thirty days after the granting of the first attachment the action abated and the court lost jurisdiction and, consequently, the second attachment fell with it.

It is questionable whether the lapse of thirty days without publication of the summons ousts the jurisdiction of the court or abates the action, or merely avoids the attachment; for it is provided by section 441 that where an action is brought against a non-resident, and an order of publication is made, the first publication, or the service out of the state, must be made within three months after the order of publication is granted. But, however this may be, even the thirty days had not expired when the second attachment was granted, and the granting of this warrant, we think, gave the plaintiffs thirty days from that time to commence publication. We see no reason why a plaintiff, after having obtained one warrant of attachment and order of publication, may not abandon them and take, out a new attachment and order, provided this course

p. 509

is not pursued for the mere purpose of vexation, in which case he would be liable for the damages unnecessarily occasioned. Several attachments may be issued in the same action to different counties (sec. 646), and if one should be defective or fail for any reason, there is nothing which prohibits an application for a new one.

After the granting of the second warrant a new order of publication was made on the sixteenth of June, and the plaintiffs had thirty days from the twelfth of June, the date of the second warrant, to commence publication under that order, which they did.

It is objected that the same affidavit was used on the application for the second attachment which had been used on the application for the first, and the cases of McCoy agt. Hyde ( 8 Cow., 68 ), Cutter agt. Briggs ( 2 Hill, 409 ) and Robinson agt. Sinclair ( 1 How. Pr., 106 ) are referred to as showing that the affidavit could not be used a second time. In McCoy, agt. Hyde ( 8 Cow., 68 ) summary proceedings before a county judge had been instituted, under the statute, to oust a tenant, and after a verdict had been rendered for the tenant the same affidavit by which the proceeding had been instituted was used' as the foundation of a new notice to the tenant to appear before the judge, and it was held that this could not be done, as it was the duty of the magistrate to preserve the affidavit as part of the record of the original proceeding which had been terminated. But no such reason exists in the present case. The new attachment was issued in the same action, and the affidavit would necessarily remain as part of the proceedings in that action. There is no positive rule that no affidavit can be twice used. In Barnard agt. Heydrick ( 49 Barb., 70 ), it was held that to obtain an order of publication against a non-resident, an affidavit might be used which had been made in a different action, all that the Code required being that the facts should appear by affidavit to the satisfaction of the judge; and in Langston agt. Wetherill (14 Mees & W., 104) it was held, after advisement and with the

p. 510

concurrence of the whole court, that on an application to a judge to hold a defendant to bail, the plaintiff might use affidavits made and used shortly before on a similar application against the same defendant by a different plaintiff; that the test as to its admissibility was, whether perjury could be assigned upon it, and that, as to the suggestion that the facts alleged though true at the time it was made might not be true when used on the application, the same objection might be raised against any affidavit used a month after it was sworn to.

The other cases cited relate to affidavits of merits, as to which a strict rule of practice prevailed, that to prevent an inquest at the circuit an affidavit must be made and filed for that special purpose, and that its absence would not be supplied by an affidavit of merits filed with a plea or on a motion to change the venue, and generally the rule as to affidavits of merits was that they could only be used once. But, if the same rule was in practice applied to other affidavits, it was mere matter of practice, a departure from which, by the court, would not deprive it of jurisdiction to grant a provisional remedy in an action, where the affidavit used stated the necessary facts, and perjury could be assigned upon it.

The objection that Buie 25 was not complied with by showing whether any former application had been made, if founded in fact, would be a mere irregularity, which, if not regarded in the court below, would not be regarded here. Moreover, it is not specified in the notice of motion, and for that reason was not available to the appellants. It appears, however, that the first warrant was before the judge when he granted the second.

The orders of the general and special term should be modified, so as to grant, the motion to set aside the first attachment and deny the motion as to the second, without costs to either party on this appeal.

All concur, except Asdbews, J., absent.