Acker v. Hautemann

Headnote

Action to recover the possession of .personal property — a seizwre of the chattels gives the court juiisdiciion of the action — When the service of an order of arrest before the service of the summons will be sustained — Oode of Oivil Procedure, secs. 416, 1698.

Appeal from an order made at a Special Term denying a motion to vacate an order of arrest against Jacob Hautemann, one of the defendants above named.

This action was commenced on the 5th day of December, 1881, by the issuing of the summons herein, and by the seizure in replevin of certain goods which the plaintiffs claim as belonging to them. The sheriff who made. the seizure was provided with copies of the summons for service on both of the two defendants herein. Such service was made on defendant Gottschalk on the 5th day of December, 1881, and on the defendant Hautemann on the 17th day of December, 1881. On the 12th day of December, 1881, an order of arrest was granted by Hon. Charles Donohue against said defendant Hautemann, and on the same day said Hautemann was arrested, and gave bail in the sum of $1,500. On the 15th day of December, 1881, an order to show cause “ why said order of arrest should not be vacated for non-service of summons ” was granted, returnable on'the 19th day of December, 1881; but the motion to vacate was in fact heard on the 20th day of December, 1881.

The court at General Term said: “ The error of the sheriff in not delivering the summons with the other papers was not fatal to the jurisdiction of the court. That jurisdiction is preserved by section 1693 of the Code, when read in connection with section 416. The action was brought to recover possession of personal property, and the effect of the neglect of the sheriff to make seivice of the summons wras that the chattels were replevied before the service of the summons. The seizure, therefore, must be deemed as equivalent to the granting of a provisional remedy for the purpose of giving jurisdiction to che court and enabling it to control the subsequent proceedings in the action, and as equivalent to the commencement of the action for the purpose of determining whether or not

the plaintiff had a right to maintain the action, or the defendant is liable thereto.

“Section 416 provides that from the time of granting a provisional remedy the court acquires jurisdiction of the case, and has control of all the subsequent proceedings.

“ The summons in this case was afterwards served by the sheriff, and the defect was thereby cured. It had previously been served on the other defendant.

“We see no reason to doubt that the provisions of the sections quoted uphold the ruling of the court below. The order should be affirmed.”