Evarts v. Becker

| New York Court of Chancery | Oct 6, 1840

The Chancellor.

The affidavits and counter affidavits as to the merits of the defence of these appellants were wholly unnecessary. For it was a matter of right for them to be let in to make a defence, upon payment of such costs as the court should think reasonable ; even if the order for publication and all the subsequent proceedings had been strictly regular, and conformable to the statute in all respects. (2 R. S. 187, § 133, 137.) The only question therefore is, whether the proceedings were strictly regular; when in point of fact both the appellants had a known and fixed residence in this state, and were neither absent therefrom, nor in any way concealed. In the case of Jermain v. Langdon and others, [ante, p. 41,] not yet reported, I came to the conclusion that it was irregular to proceed against a defendant, as an absentee, who had a fixed and notorious residence in this state ; if he was neither absent therefrom nor concealed so that the process could not be served. And that, in such a case, if the defendant applied the first opportunity after he had notice of such proceeding against him, it would be a matter of course to let him in to make his defence, without charging him with any costs. The only difference, in this respect, between that case and the one now under consideration, is, that the defendant there was proceeded against as a non-resident of the state, and that here the appellants were alleged to be residents, but that they were concealed within the state, or were not amenable to the service of process by reason of their continued absence from their places of residence.

A defendant who has a fixed and notorious residence, and whose only fault is that his adversary does not succeed in finding such residence, certainly ought not to be deprived of his right to a personal notice of the proceedings against him ; nor be charged with costs which are the result of a mistake of the complainant, or his solicitor, in supposing such defendant is absent or concealed.

I think the affidavit, on which this order to advertise was granted, was defective in not stating the particular grounds upon which the complainants’ solicitor founded his belief that the defendants were concealed within this state. For he certainly had no grounds for believing that they were not amenable to the process of the court by reason of continued absence from their place of residence, in the state, when he could not find where that place of residence was. If the residence of the defendant in this state is known to the person who attempts to serve the subpoena, he should go to his house, or place of abode, and make inquiries for him ; unless he has ascertained the fact, from some credible source, that he is actually absent from home; under such circumstances as to preclude the probability of his return within any reasonable period of time. And in case of such absence, the particular circumstances should be stated, the probable duration of such absence, and the names and residences or other description of the persons from whom the information was obtained ; to enable the court to judge of the necessity or propriety of proceeding against the defendant by an order of publication, instead of a personal service of the process. It would also be proper, in the affidavit, to state where the defendant’s residence was; so that the order might be directed to be published in the proper county, to bring the notice home to his family, or to the persons with whom he resides if he is not a householder. If the place of his residence cannot be ascertained, the circumstances should be stated upon which the person who makes the affidavit founds his belief that he is still in this state, and is concealed therein so that process cannot be served on him. A simple affidavit, that the deponent believes that the defendant resides in the state, and that the process of subpoena could not be served by reason of his concealment within this state, or of his continued absence from the place of his residence, certainly is not sufficient to authorize the court to grant an order of publication. Where, after diligent search and inquiry, the residence of the defendant cannot be ascertained, if the affidavit contains no grounds for believing that he actually resides, or has his domicil, in this state, or in the United States, or in either of the Canadas, the order of publication, instead of requiring him to appear within three months, should fix it at nine months ; the longest time mentioned in the statute.

As these defendants had an open and notorious residence in New-York, and there is no reason to suppose that there was any attempt, on their part, to conceal the knowledge of such residence from the complainants or any other person, and as they were not in fact either absent or concealed, they ought not to have been charged with the payment of costs, not caused by any fault of theirs.

The order appealed from must therefore be reversed. The order for publication, and all the subsequent proceedings, so far as the appellants are concerned, must be set aside ; provided the defendants put in their answer to the complainants’ bill within forty days after service of a copy of such bill, on their solicitor, with notice of the order to be entered on this decision. The costs of the defendants’ application to the court below, at the usual allowance of $15, and their taxable costs upon the appeal, to be costs in the cause; and to be allowed to them in case they succeed in their defence to the suit, but not otherwise. And the proceedings are to be remitted to the vice chancellor to carry into effect this decision.