Gould v. Bryan — 16 N.Y. Super. Ct. 626

Majority

p. 626

D. H. Gould, Plaintiff and Respondent, v. L. R. Bryan, Defendant and Appellant.

Headnote

1. In an action for the recovery of money, an affidavit is sufficient to authorize the issuing of an attachment against the defendant; by which it is made to appear, that a cause of action exists against such defendant, together with the amount of the claim and the grounds thereof, and that the defendant is not a resident of this state.

2. In such an action, and on a state of facts on which it is proper to grant such an attachment, one may be issued and made to accompany the summons into the sheriff's hands, and may be served after due personal service

p. 627

of the summons has been made; and when so issued and served it is regular and valid.

3. .The phrase, “in an action for the recovery of money,” as used in § 227 of the Code, designates the class of actions in which an attachment may issue, and does not make the actual commencement of a suit by the service of a summons, an essential prerequisite to the jurisdictional competency of a Justice of the Superior Court to grant an attachment.

4. An attachment against the property of a non-resident defendant, may be issued, as well as an order for his arrest be made, before actual service of the summons, but cannot be executed until the summons has been served.

(Before Bosworth, Oh. J., and Hoffman, Slosson, Woodruff, Pierrepont and Moncrief, J. J.)

Heard and decided, February 12th, 1859.

This is an appeal by the defendant from an order made by Bosworth, Oh. J., on the 26th of January, 1859, denying defendant’s motion to set aside an attachment against his property, granted in this action on the 17th of January, 1859, by the Chief Justice.

The affidavit on which the attachment was granted, stated facts establishing that a cause of action existed in favor of the plaintiff against the defendant, for money lent, and the amount due. It appeared thereby that the defendant was not a resident of the State of New York, and it contained various allegations of fact tending to show, that the defendant was about to dispose of his property with intent to defraud his creditors. The defendant moved, on that affidavit and on one made by himself, to vacate and set aside the attachment. The defendant, in the latter affidavit, states “that he is informed and believes that the attachment in this action was granted by his Honor, Chief Justice Bosworth, and delivered to the sheriff for service and execution, before the summons in this action was served upon deponent.

“ That the deputy-sheriff, at the time of the service upon-this deponent of the summons herein, delivered to this deponent a copy of the said attachment.” The defendant’s affidavit contained various other allegations, some of which were inserted to show that he had ceased to be a resident of Washington, D. C., and had abandoned his residence there and become a resident of New York before this suit was commenced; and others to repel the suggestion that he was about to dispose of his property with

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intent to defraud his creditors. The order to show cause why the attachment should not be vacated, specified as the grounds on which it should be set aside, the following, viz.:

First. That the defendant was a resident of New York.

Second. That the affidavit on which the attachment was granted was insufficient, and,

Third. That the attachment was granted and issued before the summons was served; and therefore, (as it was insisted,) before the Court had acquired jurisdiction of the action. That the acts of the Chief Justice in issuing it, were acts done in a matter of which he had no jurisdiction.

The motion was opposed on various affidavits tending to show that the defendant was not a resident of the State of New York; and, as the plaintiff insisted, also tending to show that the defendant was about to dispose of his property with intent to defraud his creditors.

There was nothing in the affidavits tending to show, that the attachment was granted before the summons had been issued and delivered to the sheriff to be served, or that the attachment was served until after the summons had been actually, and personally served, on the defendant. The papers did not contain a copy of the attachment, and, therefore, did not show whether or not, by its terms, the sheriff was directed (after service of the summons had been made) to attach defendant’s property, &c.

The motion to set aside the attachment was denied, and the following opinion was filed with the decision:

—“ In an action for the recovery of money,” the property of a non-resident defendant may be attached. (Code, § 227.)

The affidavit on which the warrant may be issued, need only state enough to make it thereby appear, “that a cause of action exists against such defendant, specifying the amount of the claim, and the grounds thereof,” and that the defendant “is not a resident of this state.” (Code, § 229.)

The affidavit in question states all this, and therefore is sufficient in form. If the Court now has jurisdiction of the action, and of the person of the defendant, and had when the order to show cause why the attachment should not be vacated was

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obtained; then, the attachment cannot be vacated, unless the affidavits establish that, as matter of fact, the defendant was a resident of this state.

The defendant has been personally served with the summons, in the city of New York, and this Court has acquired jurisdiction of the action and of the person of the defendant. (Code, § 33, sub. 2.) There is no pretence that the attachment was served before the summons.

It is alleged that at the time of the service, upon the defendant, of the summons herein, the deputy-sheriff delivered to the defendant a copy of the attachment. There is no allegation that any property was attached before the summons was served, or that the attachment was granted and delivered to the sheriff to be served before the summons was delivered to him to be served; or that it was intended that the attachment should be served unless the summons was first actually served.

I think an attachment may be granted, and may accompany the summons into the sheriff's hands, and that on the summons being personally served, the attachment may be served, and that an attachment thus issued and served is a valid process. 1 Duer R., 662 (anonymous); Code, § 8.

In Fisher el al. v. Curtis, ( 2 Sandf. Rep., 660 ,) it was suggested that the words “ in an action,” in section 227, could not be satisfied except by the actual commencement of an action by the personal service of a summons on a defendant. If that be so, then the property of a resident defendant who has absconded (so that he cannot be served) could not be attached, by any attachment issuing out of this Court.

But, section 227 is not correctly quoted, in Fisher et al. v. Curtis {supra). The language is, “ in an action for the recovery of moneyand that language describes the class of actions in which an attachment may issue; but it does not declare that the action must be commenced, before the attachment can be granted.

On the contrary, it declares that the plaintiff, at the time of issuing the summons, may have the defendant’s property attached, and section 8 of the Code applies the chapter of the Code in which section 227 is found, to this Court.

Unless an attachment can accompany the summons, and will

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be valid until the summons has been personally served, provided it is actually served before the attachment is served, then it would seem to follow, that an order for the arrest of a non-resident defendant, granted before the summons is served, though not served until after the summons, would be void. The defect of jurisdiction applies with as much force to the one case as to the other.

J. B. Brownell, for appellant, (the defendant,)

Insisted, that the affidavits established the fact, that the defend-' ant was a resident of the State of Few York, at the time this suit was commenced, and repelled the idea that he was about to dispose of his property, with intent to defraud his creditors. Upon the question of the jurisdiction of the Judge to grant the attachment, he contended as follows :

But if the defendant be a non-resident, then the attachment should not have been granted, and having been granted it should have been discharged.

If the objection be sound that this Court has no jurisdiction to grant process, or a proceeding in the nature of process, until the summons has been served, when the defendant-is a non-resident, then an order of arrest would be as truly unauthorized as an attachment against the property of the defendant. An order of arrest is in the nature of process, and accomplishes the office of *the ac etiam, clause in a capias ad respondendum.

My conclusion is that an order of arrest may be granted (Code, § 183,) or attachment be issued in the specified cases, and may accompany the summons into the sheriff’s hands (Code, § 227,) to be served when the summons has been personally served, and that an attachment so issued and served is regular and valid.

The opposing affidavits establish that the defendant has not lost his residence at Washington, nor acquired a residence in this state, in such sense as to be exempt from an attachment against him as á non-resident defendant, within the meaning of the word non-resident, as used in the Code.

The motion must be denied, - with ten dollars costs to the plaintiff, to abide the event. .

From the order denying such motion, the defendant appealed to the General Term.

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1. In an action in this Court, a justice has no jurisdiction to grant an attachment against a non-resident defendant, before the summons is personally served upon the defendant. (Code, § 33; Fisher v. Curtis, 2 Sandf., 660 , 661.)

2. The affidavit upon which the attachment was issued, was insufficient.

It does not show that the Court had jurisdiction of the action or of the person of the defendant; and the affidavit of the defendant shows that if the defendant be held to be a non-resident, this Court had no jurisdiction of the action, or of the person of the defendant, at the time the attachment was granted. The order appealed from, should be reversed with costs, and the attachment vacated and set aside with costs of the motion below. "

N. G. Wyeth, for respondent.

The Court, at General Term, after hearing the argument, stated that the Court were of the opinion, that the affidavits established the fact that the defendant was not a resident of the State of New York.

That the judges were unanimous in the opinion, that an attachment against the property of a non-resident defendant may be issued and accompany the summons into the hands of the sheriff, and may be served after the summons has been duly, personally, served; and that an attachment so issued and served is regular and valid, for the reasons stated in the opinion of Boswobth, Ch. J. The order was affirmed.