12 F. Cas. 1141 | S.D.N.Y. | 1872
The bill in this case was filed October 5th, 1871, to set aside certain conveyances of real estate, as fraudulent as against the creditors of Ely Hoppock, the bankrupt. A subpoena to appear and answer was issued, but cannot be served on the defendants Ely Hoppock and his wife, by reason of their continued ab sence from the jurisdiction of this court. Inquiry has been made at their last place of abode, but they cannot be found so as to be served with the subpoena, and it is alleged that they have gone out of the state, or otherwise absconded, to avoid the service of the process of this court. It is stated, that they are in the receipt of the rents of the property sought to be affected by the bill, and that their son, as their agent, receives the rents and transmits the same to them monthly. On these facts, the plaintiff asks that an order be made, directing said defendants to appear at a day to be named, and answer the bill, and that such order be served by publication or otherwise, or that an order be made for the service of the subpoena upon the said son of the defendants, for them, and that such service be deemed good service on them, and that thereupon an order be made directing an appearance to be entered for said defendants.
The ground on which this application is made is, that where the service of the subpoena cannot be made by ordinary means, a resort may be had to extraordinary means, such as service at the last place of abode, or on some other person; and that, by statute, in England, such substituted service on a receiver of rents is allowed.
I regard this whole subject, so far as service of the subpoena in this suit is concerned, as regulated by act of congress and by the rules established by the supreme court. Under the 11th section of the act of September 24th, 1789 (1 Stat. 79), if the defendants are inhabitants of the United States, this suit cannot be brought against them by any original process, in any other district than that whereof they are inhabitants, or in which they shall be found at the time of serving the process. If they are inhabitants of the United States and of this district, or are found within this district, the subpoena may, by rule 13 in equity, be served on them personally, or on the husband personally for the wife, or by leaving a copy at the dwelling-house or usual place of abode of each of them in this district, with some free white person who is a member or resident in the family. If they are not inhabitants of this district, and are not found within this district, I know of no statute conferring on this court the power of obtaining jurisdiction over their persons in this suit, by any service of process made otherwise than in accordance with rule 13, or the power to make any one of the orders applied for. In the absence of any statute, or of any rule having the force of a statute, conferring such power, I must refuse the application.
