41 Barb. 549 | N.Y. Sup. Ct. | 1863
Upon every application for an order that the service of a summons may he made by publication, pursuant to the provisions of section 135 of the code, the applicant must not only show that the case falls within some one of the five subdivisions of that section, hut he must also establish the central jurisdictional fact that the person on whom the service of the summons is to he made cannot, after due diligence, he found within the state. The circumstance that such person is a non-resident is of no importance except as it tends to establish the fact that he is not within the state at the time when the application is made. It is not necessary to inquire, in the case before us, whether the bare averment of non-residence, nothing else appearing in respect to the whereabouts of the defendant, is enough to establish the requisite fact of his absence from the state. The affidavit upon which the ordei in question was made, in addition to averring that Cook, the defendant in respect to
The plaintiff is not aided by the fact that after the order for publication was made, the summons and complaint were served upon Cook personally, in Ohio. It has been considered well settled law that jurisdiction of the person of a defendant could not he obtained by any court, except by his voluntary appearance, or by due service of process; and that effectual service of process could not he made on any person beyond the jurisdiction of the court out of which the process issued. (Fiske v. Anderson, 33 Barb. 71. Fenton v. Garlick, 8 John. 194. Andrews v. Herriot, 4 Cowen, 524, in note.) By the section of the code above referred to, personal service of summons and complaint out of this state is only made equivalent to publication and deposit in the post office, and it can have no greater effect. (Fiske v. Anderson, supra.) And it can only have that effect when publication is ordered.
These views are not in conflict with any of the cases cited by the plaintiff, to wit, Brisbane v. Peabody, (3 How. Pr. Rep. 109;) Rawdon v. Corbin, (Id. 416;) Vernam v. Holbrook, (5 id. 3;) Roche v. Ward, (7 id. 416;) Titus v. Relyea, (16 id. 371;) and Van Wyck v. Hardy, (11 Ab. Pr. Rep. 473.) Brisbane v. Peabody has no bearing upon the questions in this case. Rawdon v. Corwin is an authority against the plaintiff. There a motion for an order of publication was denied by Justice Hand, although the affidavit showed the absence of the defendant, (not his non-residence merely,) but it did not show that a summons had been made out, nor that there had been an effort to serve one. The judge said “The affidavit is defective. It should show that a summons and complaint have been made out, and that due diligence to serve the same has been^used, without success.” After thus disposing of the motion, he remarked, “ Probably, showing that the defendant is not in the state,
Order of the special term affirmed, with $10 costs.
2?. Darwin Smith., Johnson and J. 0. Smith, Justices.]