Matthews v. Gilleran

Headnote

1. Attachment—Affidavit.

An affidavit for an attachment which states that deponent knows that plaintiff will not be able, with due diligence, to make personal service on defendant within the state; that defendant cannot be found therein and resides in another state where his time is passed in attending to his business, is sufficient.

'2. Service—Publication.

It is not necessary to publish or mail a copy of the summons where personal service has been made without the state.

Appeal from order denying motion of Keyes D. Browne, assignee for creditors of defendant, to vacate an attachment.

On or about March 25, 1889, an attachment was granted in this action upon the affidavit of a clerk of plaintiff,which stated that deponent knew defendant, “ that he knows the residence of the latter. That the latter resides at Mohegan, in the state of Rhode Island. That his post office address is the same and that he is of full age. That defendant has property in the state of Mew York, viz., a large •quantity of woolen goods, or so called woolen goods, being cloth, now in the hands of the firm of Jacob Wendell & Company, his ■consignee thereof, for sale at their stores, Mos 61 and 63 Worth street, in the city of Mew York. That deponent is personally familiar with all the facts or allegations stated in the complaint

and knows that the same are true. That defendant is indebted to plaintiff in the sum of $2,183.92 for wool in bags sold and delivered by plaintiff to defendant on November 3d and December 5th last, to be paid for, part in sixty days and part in ninety days from those dates, all as- stated in the complaint. That deponent knows that the plaintiff will be unable, with due diligence, to-make personal service of the summons in this action on said defendant within this state. That the same cannot be so served because he cannot be found therein to make service upon him. That he cannot be found here, because he resides in the state of Rhode Island; that his place of business is in the state of Rhode Island. That his time is passed in said state in superintending the manufacture of woolen cloth, being the business carried on by him.”

An order for the sei’vice of the summons by publication was also granted, and the summons and' copy order were served personally on defendant in Rhode Island.

April 1, 1889, defendant executed an assignment for creditors to Keyes D. Browne, who, in June, 1890, moved to vacate ‘the-attachment on the ground of the insufficiency of the affidavit, and also on the ground that copies of the summons, complaint and order of publication were not mailed to defendant as required by the order.