Hardy v. Moore

4 F. 843 | S.D.N.Y. | 1880

Choate, D. J.

The return of the marshal to tire process shows that he made diligent search for the principal defendant and could not find him. The moving affidavits raise such question of the truth of this return that if it were material an inquiry would be ordered. But I think the order of the court that an alias issue, made on proof by affidavit that the court had acquired no jurisdiction by reason of having made no attachment, must be deemed to have vacated in effect the first interlocutory decree. It treats that decree as a nullity. It would have been proper and more regular to have entered an order at the same time vacating the decree, hut the failure to do so does not, I think, make the alias process void or irregular. The information the libellant’s proctor had when he applied for an order that process with foreign attachment issue, was such as to authorize it; and there is nothing to show a want of good faith on his client’s part in failing to communicate to his proctor all that he knew about the principal defendant’s residence and place of business. The issue of the alias process was justified by the state of the facts existing when it issued, an d it was duly served. Therefore, the question raised as to the service of the original process is immaterial. The libel should have been signed before process issued. It appears to have been signed by “Beebe, Wilcox & Hobbs” as proctors, and verified, as appears by the officer’s certificate. I do not think the failure of Mr. Beebe to sign it, which on the affidavits seems to be admitted, made the process void. It was a defect which would have been cured by amendment. But no amendment having been allowed, the libel must be considered as still unsigned except by “Beebe, Wilcox & Hobbs” as proctors. I think if it was in fact verified, and that appears by the certificate, this is a defect the court is bound to overlook after judgment. Rev. St. § 954.

The libellant being named by his initials is immaterial. It does not prejudice the defendant. It might be quite otherwise if an attempt were made to publish against a defendant by his initials. He might be prejudiced thereby and the notice insufficient. Frank v. Levie, 5 Rob. 599.

Neither the principal nor the garnishee show any very good reason for not appearing. The garnishee appears to have supposed that it need not appear in obedience to the first process because it had no funds. It was so advised. This is the very reason why it should have appeared. It supposed it had funds when the second process was served, but now finds that another person claims the funds. I think, therefore, its default should be opened. The principal defendant appears to have had a proctor retained to attend to the business all the time, and why no appearance was entered does not appear, unless it was because the whole proceeding was regarded as void on account of the defect in the libel, which was an error, as I think. But he now shows that he may have a defence on the merits.

Default opened as to principal defendant and garnishee, on paying the fees and expenses paid upon the reference; the principal defendant to file his answer, setting up defence referred to in his affidavit, within five days after entering order on this memorandum, and stipulating that the issues be referred to a commissioner for trial; either party, however, being at liberty to make any application to the court that he may be advised, in consequence of the libel being unsigned except by “Beebe, Wilcox & Hobbs,” proctors, on one day’s notice.