Zerega v. Benoist — 30 N.Y. Super. Ct. 199

Majority

p. 199

John A. Zerega, et al. plaintiffs, vs. S. H. Benoist, defendant.

Headnote

1. This court has no jurisdiction whatever in an action of the class mentioned in subdivision 2, of section 33 of the Code, unless the defendant is a resident of the city' of New York, or, if non-resident, is personally served with a summons within the city.

2. If the defendant is a non-resident, and has not been served with a summons, at the time of the levy of an attachment upon his property, the court, at that time, has no jurisdiction either of the subject matter or the person of the defendant. The writ of attachment has no validity, and the levy under it is wholly void and unauthorized.

3. But inasmuch as under the decision in Gould v. Bryan, (3 Bom. 626,) a warrant of attachment so issued becomes valid and operative the moment the summons is personally served, it cannot be set aside on the ground of want of jurisdiction, but only the levy made under it, and all proceedings had on such levy.

4. The jurisdiction conferred upon the New York Superior Court by section 33 of the Code is not extended by the operation of section 8, or any other provisions of the Code.

6. The presentation of an affidavit, under section 229 of the Code, containing the matters therein required to be stated, is necessary to give the court power and jurisdiction to issue a warrant of attachment. The entire omission of any one of the allegations required to be sworn to, for that purpose, is not a mere irregularity which can be amended nmo pro tuno, but produces a failure of jurisdiction which cannot be remedied by amendment. '

6. Hence if the affidavit omits to state the grounds of the cause of action, the warrant of attachment will be set aside, on motion.

7. A motion to vacate a warrant of attachment may be made after judgment has been entered.

8. Placing a defendant, upon opening his default, in the condition of allowing the judgment to stand as security, does not preclude him from moving to set aside an attachment.

(Before Jones, J. at special term,

February —, 1867.)

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This was a motion on "behalf of the defendant to set aside an attachment, which was issued against his property, on the ground of his non-residence. The attachment was delivered to the sheriff with the summons, but i.t was levied on property of the defendant some three or four days before the summons was served on him. The affidavit on which it was issued stated that the defendant was a nonresident and the plaintiffs had commenced an action in this court by the issue of a summons herein, but did not state that the summons had been served on the defendant; nor did it state the grounds of the plaintiffs’ demand. A judgment was taken against the defendant, by default, for not answering. A motion was made to open the default, which was granted, on condition (among others) that the judgment should stand as security.

H. Barnard, for the plaintiffs.

Sewell & Pierce,,for the defendant.

This action is one of those mentioned in the second subdivision of section 33 of the Code. In that class this court has no jurisdiction whatever unless the defendant is a resident of the city of Hew York, or, if non-resident, is personally served with a summons within the city.

In this case, the defendant being a non-resident, and not having been served with summons, at the time of the levy of the attachment, the court at that time had no jurisdiction either of the subject matter or the person of the defendant. It follows that the writ of attachment was at that time of no more validity than if the judge had never signed it, and the levy under it was wholly void and unauthorized.

This is necessarily the result of the second subdivision of section 33, unless the jurisdiction conferred by that sec

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tion is extended by the operation of section 8, or some other provisions to be considered. I think there is no real extension created by those sections. Section 8 reads thus: “ This act is divided into two parts. The first relates to the courts of justice and their jurisdiction. The second relates to civil actions commenced in the courts of this state * * * * and is distributed into fifteen titles. The first four relate to actions in all the courts of the state, and the others to actions in the Supreme Court, the county courts, the Superior Court of. the city of Yew York, the court of common pleas for the city and county of Yew York, mayors’ and recorders’ courts of cities, and to appeals to the Court of Appeals, Supreme Court, county courts and Superior Court of the city of Yew York.”

Title 7 under part 2 is entitled, “ Of provisional remedies in civil actions.” Section 227 (which is one of this title) provides that “In an action for the recovery of money * * * * against a defendant who is not a resident of this state, * * * * the plaintiff at the time of issuing the summons, or at any time afterwards, may have the property of such defendant or corporation attached in the manner hereinafter provided, as a security for the satisfaction of such judgment as the plaintiff may recover.” This being the first section of that chapter, 4, the other sections contained in that chapter prescribe how a warrant of attachment is to be obtained, and the proceeding to be had thereunder.

It is clear that sections 8 and .227 do not expressly extend the jurisdiction of this court to cases where the defendant is a non-resident and has not been served with summons in the city of Yew York. If there is any such extension of jurisdiction, by those sections, it must be by implication. The argument upon which such implication, if it exists, rests, is this: By section 227, in an action against a nonresident, an attachment of his property is authorized at

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the time of issuing the summons. This section having by section 8 been made applicable to the Superior Court, it follows that that court can, in an action against a nonresident, issue an attachment against his property before he has been served with summons in the city of blew York. The Superior Court, then, having this power, must necessarily have jurisdiction of an action against a non-resident without his being served with summons in the city of blew York; since it would be absurd to say that a court has power to issue a process in an action of which it has no jurisdiction.

To this argument there are several answers. One is' that by section 8, section 227 relates only to civil actions when commenced in the Superior Court. Thus before section 227 can apply in any manner to the Superior Court, an action must have been commenced therein. As an action against a non-resident of the city can in no manner be commenced therein until service on him of a summons within the city, section 221 can have no application to such an action before that event takes place.

Another answer is that sections 8, 33 and 227 are parts of the same act. The whole act and all its provisions, must be so construed as to give effect, if possible, to all the language used in it. Section 33 expressly limits the jurisdiction of this court to certain cases. If section 227 is to be construed as extending the jurisdiction, then the language of section 33 is utterly inefficient for any purpose. According to the ordinary rules for interpreting statutes, courts will not construe a statute so as to produce such a result, unless the language is so clearly antagonistic as to leave no door open for an escape. That is not the case here. Section 227 may well be held to apply only to those actions of which the court wherein they are pending has acquired by some act necessary for the purpose, jurisdiction,” or has it generally.- Another answer is that

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statutes are to be construed according to the intent of the legislature, which is to be gathered from a view of the whole act in connection; sometimes from its preamble, sometimes with a consideration of the mischief previously existing, which the statute was enacted to remedy, and sometimes from other matters.

In looking at all the provisions of the Code of Procedure, it is apparent that its general scope is first to define the jurisdiction of the courts, which is done in part first; and then to prescribe certain rules which should govern the various courts in the commencement and prosecution of actions of which they have jurisdiction; which is done by part second. To suppose that a section in part two, merely prescribing a remedy to be had in an action after it is commenced, as well as the mode of obtaining it, gives jurisdiction to commence an action in a court, from exercising jurisdiction, over which that court has been by part first expressly restrained, is manifestly contrary to the general scope and design of the Code.

I am aware that the legislature, -in 1866, amended section 227 by adding, “ and for the purposes of this section, an action shall be deemed commenced when the summons is issued, provided,” &c. This amendment, however, does not aid the plaintiffs in their position that the court had jurisdiction to issue the attachment in question. The amendment arose in this way. Under the construction given by the Court of Appeals in Kerr v. Mount, ( 28 N. Y. Rep. 659 ,) to section 227, as it stood before its amendment, no court, not even the Supreme Court, which had general jurisdiction, irrespective of the residence of the defendant, or the place of service of summons, had jurisdiction to issue an attachment until the defendant had been brought into court by either personal or substituted service of summons. To cure this defect, the amendment was passed.

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The remarks heretofore made as to sections 8, 33 and 227, apply equally to this amendment. The amendment but adds to the previously existing regulations of practice one more, which, like the former ones, only become operative when the court has jurisdiction over the action.

I am aware that this court has held, at general term, in Gould v. Bryan, ( 3 Bosw. 626 ,) 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. In the present case, however, the attachment was served before the defendant was served with summons.

As from the views above expressed, the court, at the time of the levy of the attachment, had no jurisdiction over the action, and no jurisdiction to issue the attachment, such levy under it was void and unauthorized, and must be vacated. Under the decision in 3 Bosw. 626 , upon the service of summons on the defendant, the warrant would have been valid and operative. Consequently the warrant itself cannot now be set aside, on the ground of want of jurisdiction, but only the levy made under it, and all proceedings had on said levy.

The defendant, however, insists that the attachment should be vacated, on the ground that the affidavit on which it issued does not state enough to give jurisdiction. Section 229 provides that the warrant may be' issued whenever it shall appear by affidavit that a cause of action exists against the defendant, specifying the amount of the same, and the grounds thereof, &c. The presentation of such an affidavit, containing the matters therein required to be contained, is necessary to give the court power and jurisdiction to issue the warrant. The entire omission of one of the allegations required to be sworn

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to, is not a mere irregularity, which can he amended nunc pro tune, but constitutes a defect of jurisdiction, which cannot be remedied by amendment. In the present case, the affidavit wholly omits to state the grounds of the cause of action. This statement is very material. It is required for the purpose of enabling the court to ascertain whether the cause of action is such as that a warrant can issue. For this omission the warrant must be set aside.

The plaintiffs, however, contend, that even if the above grounds are, or if either one of them is, sufficient to set aside the warrant, yet the defendant cannot avail himself of them, because, firstly, judgment has been entered; and, secondly, the defendant’s default was opened, and he let in to defend, on condition that the judgment should stand as security.

There is no statute, in express terms, requiring a motion to vacate a warrant of attachment to be made before judgment. ¡Nor can I perceive that any such limitation can be implied from the various provisions of the Code. I do not stand alone in my inability in this respect; but the court, in Thompson v. Culver, ( 15 Abb. 97 ,) shares it with me.

I have been referred to the case of Spencer v. The Rogers Locomotive Works, ( 13 Abb. 180 ,) as holding that an attachment cannot be vacated after judgment. That case, however, simply decides, that where there is a valid and regular attachment, an undertaking, under sections 240 and 241, will not be allowed to be substituted in its place after judgment, for the reason that, in such case, the lien gained by the .plaintiff by the levy of the attachment, becomes, after judgment consummated, a right to satisfaction out of the specific property attached established. The reason is wholly inapplicable to eases where, in consequence of the attachment being void for want of jurisdiction, the plaintiff never gained any lien.

The only remaining point to be considered is, whether

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placing a defendant, upon opening Ms default, in the condition of allowing the judgment to stand as security, precludes him from setting aside the attachment.

If the motion to open that default had been made on the ground of irregularities on the part of the plaintiff, no such condition would have been imposed. But the motion was founded on affidavits admitting the plaintiff’s regularity, but excusing the default, and showing a good defense on the merits. This is a motion that appeals solely to the favor of the court. In such cases, it is the general practice of the court to impose, as a condition of granting the favor, that the judgment shall stand as security, for the purpose of giving to the plaintiff the benefit of any lien which he may have acquired by his vigilance and regularity.

The question, whether this attachment should stand as security, was not before the judge who granted the motion to open the default, and he has not passed on it.. If it had been before him, in the shape in which it has been presented to me, I must assume he would not have directed the attachment to stand; since to allow a void process to stand, would be contrary to the principle upon which a valid and regular judgment is allowed to stand.

The cases of Hall v. Stryker, ( 27 N. Y. Rep. 596 ;) Rinchey v. Stryker, (28 id. 45;) Chaine v. Wilson, ( 8 Abb. 78 ;) and Barry v. Bockover, (6 id. 374,) cited by the plaintiff’s counsel, seem to me to have no bearing on the principles involved in this, motion. Ketchum v. Ketchum, (1 Abb. N. S. 157,) is sufficiently answered by Thompson v. Culver, ( 15 Abb. 97 .)

Motion granted, with costs.

Cases cited

Gould v. Bryan 3 Bosw. 626 N.Y. Super. Ct. 1859-02-12 p. 204