10 Barb. 258 | N.Y. Sup. Ct. | 1850
The ground upon which this motion was decided at the special term was, that the summons had not been served at the time of the decease of the defendant Duncan McEwing, jun. We concur in the opinion which.was expressed upon the decision of the motion, that, as a general rule, a suit is not commenced, where the service of the summons is by publication, until the expiration of the time for publication prescribed by the code. But in addition to the provision contained in section 127 of the code, as to the commencement of civil actions, it is also provided in section 139, that from the time of the allowance of a provisional remedy in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. In this case, an attachment, which is one of the provisional remedies mentioned in the code, had been issued against the property of the defendant McEwing, and his property had been taken under it, before his decease. It seems, then, that although there had not
Edmonds, P. J., did not hear the argument in this cause, and took no part in the decision.
