Fitch v. Smith — 10 Paige Ch. 9

Majority

p. 9

Fitch vs. Smith. Terry vs. The Same.

1842. Oct. 4.

Headnote

The service of the subpoena in the cause subsequent to the filing of the complainant’s bill, or the issuing of the subpoena and a bona fide attempt to serve the same, is the commencement of the suit against the defendant, and not the filing of the bill merely.

Where a creditor’s bill in one suit was filed two hours before the filing of the bill in another suit, but a subpoena on the last bill was taken out and served before any attempt had been made to serve a subpoena upon the bill first filed, Held, that the suit upon the bill last filed was first commenced, and that the complainant in that suit was entitled to a priority in payment out of the property of the judgment debtor, who was the defendant in both suits.

This was an appeal by Fitch, the complainant in the first of the above causes, from a decision of the vice chancellor of the eighth circuit. The complainants, respectively, were judgment creditors of the defendant Smith, and filed creditors’ bills against him, to obtain satisfaction of their debts. The solicitors of both complainants resided at Buffalo, and sent their bills by the same mail to Rochester to be filed, and to obtain injunctions thereon—the first bill directed to a deputy in the office of the clerk in chancery, and the last to the clerk himself. The deputy, not noticing that an injunction was required in the case directed to him, filed the bill immediately ; and in the other case the bill was filed two hours afterwards, but not

p. 10

until an injunction had been applied for thereon and granted. The injunction was received by the solicitor for Terry, at Buffalo, on the 6th of December ; and a subpoena was immediately made out, and was served upon the defendant on the same day, together -with the injunction. The solicitor for Fitch received notice of the filing of his bill on the same day. But in consequence of a mistake of the deputy clerk, in overlooking his directions to present the bill to the vice chancellor and obtain an injunction thereon, he had to send again to Rochester to procure the allowance of an injunction before he took out and served his subpoena; and he was not therefore able to serve both the subpoena and injunction until the 15th of December.

The vice chancellor decided that the complainant, in the suit in which the subpoena was first taken out and served, was entitled to a priority of payment, out of the defendant’s property in the hands of the receiver, although the bill of the complainant in the other suit was first filed in the clerk’s office. And he made an order accordingly ; from which order Fitch appealed.

E. Fitch Smith, for the appellant.

C. H. Bramhall, for the respondent.

The complainants in both of these cases sent their bills to the clerk’s office at the same time 5 neither being aware of the fact that the other was about to commence a suit against the same defendant for a similar purpose. But owing to a mistake the deputy clerk who acted as the appellant’s agent, filed the bill immediately, and without applying to the vice chancellor for an injunction thereon ; in consequence of which mistake that bill got on to the files of the court two hours before the respondent’s bill. And if the filing of the bill, before taking out and serving a subpoena or making a bona fide attempt to serve it, was the commencement of a suit in this court, the appellant would have obtained a preference in payment out of thg property of the defendant, in consequence of

p. 11

this'mistake of the deputy clerk. The filing of the bill, however, is not the commencement of the suit; although by statute the bill must now be filed before any process for the appearance of the defendant can be issued. (2 R. S. 179, § 70, 76.) It is true, in common parlance, we use the expression “filing of the bill” to denote the commencement of a suit in chancery ; instead of referring to the issuing and service of the subpoena, or the making of abona fide attempt to serve it, after the bill has been filed, which is the actual commencement of the suit in this court. (Webb v. Pell, 1 Paige’s Rep. 564. 1 Dan. Ch. Prac. 554.)

Here, as I understand the affidavit of the appellant’s solicitor, no subpoena was attempted to be served, or was even issued, until the solicitor received the injunction from Rochester, which was more than a week after the injunction and subpoena in the respondent’s suit had been actually served upon the defendant.

The decision of the vice chancellor is therefore clearly right j and the order appealed from must be affirmed with costs.