Dimmerling v. Andrews

Headnote

Practice — service on non-resident — when motion to vacate judgment, attachment, service of summons and orders of publication thereof should be granted.

Dimmerling v. Andrews, 205 App. Div. 856 , reversed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 25, 1923, which affirmed an order of Special Term denying a motion to vacate a judgment, an attachment, service of the summons and complaint on said appellant and the order of publication of the summons. The following questions were certified:

“ (1) Does section 232 of the Civil Practice Act require proof of the issuance of a warrant of attachment against the property óf a non-resident defendant, and the levy thereof upon his property within the state, as a condition precedent to the granting of an order for service of the summons upon him by publication?

“ (2) May a valid levy of an attachment against the property of a non-resident defendant be made more than twenty days after the completion of the service of the summons upon him by publication?

“ (3) Did the entry of the judgment against the defendant Archie M. Andrews, under the circumstances disclosed by the record, constitute £ due process of law? ’ ”