Bryan v. University Publishing Co.

Headnote

Summons—Service of by publication—Code Civ. Pro., § 438, sub. 1.

It is provided by Code Civ. Pro., § 438, sub. 1, that an order directing the service of a summons upon a defendant without the state or by publica

tion may be made when the defendant to he served being a natural person is not a resident of the state. No limit is imposed requiring the possession of property in the state.

Appeal by the defendant Wilkinson, from an order denying her motion to vacate an order for the service of summons upon her by publication.

The action is in the nature of a creditors’ bill.

The plaintiff has recovered a judgment against the defendant Charlotte H. Richardson, for $13,956.13. Execution has been issued and returned unsatisfied. She was at the time of the commencement of the action, in which judgment was recovered against her resident here and the owner of certain copy-rights and stereotype plates. The copy-rights she has, without consideration, transferred to the defendant Wilkinson, who resides in Massachusetts,, and the stereotype plates remain in the possession and control of the University Publishing Company of New York,, by which Company they are being operated solely for her benefit, and solely in New York city.

The proceeds of the business are transferred by checks to Mrs. Wilkinson, and by her endorsed to the defendant Richardson’s husband, no dividend whatever being made to the shareholders of the publishing company.

The object of this action is to remove the legal obstacles which have been fraudulently created, and apply the proceeds of the defendant Richardson’s interest in this business, to the satisfaction of plaintiff’s judgment.

For this purpose the plaintiff prays in his complaint that the assignment of the copy-rights to Mrs. Wilkinson, be set aside, that the payment of the proceeds of the business to Mrs. Wilkinson be retained, that an accounting be had, a receiver appointed, and through him the proceeds of the business be paid over to the plaintiff. It is manifest that to such an action the defendant Wilkinson is a necessary party, or in other words, that a cause of action exists against her. She is a non-resident, and these two elements concurring, furnish the complete ground for the order of publication.