Taylor v. Troncoso

Headnote

Upon the thirtieth day after the granting of a warrant of attachment, an order for the publication of the summons in this action was obtained, and it was published on the same day in one of the papers designated; it was delivered upon the same day to the other paper, but was not published until the next day. Copies of the summons and complaint were mailed to the defendants, as directed in the order, on the day it was granted. Held (Rapallo, Miller and Earl, JJ., dissenting), that the publication of the summons was not commenced within thirty days after the granting of the attachment, within the meaning of section 688 of the Code of Civil Procedure (New Code); and that the attachment was properly vacated.

This was an appeal from an order of General Term, vacating an attachment. The ground, as stated in the order, was “that the service of the summons by publication was not duly commenced, within the meaning of section 638 of the Code of Civil Procedure, within thirty days after the warrant of attachment was issued.”

The warrant of attachment was granted January 30, 1878, an order for service by publication of the summons was obtained March 1, 1878, and it was published on the same day in one of the newspapers named therein. It was delivered on the same day to the other paper designated, but not published until the next morning. On the day of granting the order, copies of the summon and complaints were mailed to the defendants, as directed in the order. Held (Rapallo, Miller and Earl, JJ., dissenting), that the attachment was properly vacated for the reason stated in the order of General Term.