35 How. Pr. 356 | N.Y. Sup. Ct. | 1868
It is claimed by the appellant’s counsel, that the judge who granted the order of publication had no right to receive or take into consideration the sheriff’s certificate that he could not find the defendant in his county, to make service of the summons upon him. It is also claimed that proof by affidavit, that the defendant to be served “ cannot after due diligence.be found within the state,” must be made by the officer, or other person who has possession of the summons, for the purpose of making service. And that the affidavit of the plaintiff' who could not serve the summons, was not competent proof before the officer, to satisfy him that the defendant could not be found within the state. The statute provides' what kind of proof shall be made to the satisfaction of the court or officer granting the order of publication, that a party cannot, after due diligence, be found within the state. That fact must appear by affidavit. ■ (Code, § 135.)
The return of a sheriff will not answer; that not being the kind of evidence which the statute requires. Uor could the essential fact be made to appear partly by affidavit and partly by a return. It must be made to appear by affidavit only. But although the return appears to have been presented with the plaintiff’s affidavit, there is nothing to show that the judge who granted the order received or acted upon the return as evidence. On the
If the affidavit was competent as evidence, the presence of the return at the same time did not destroy or weaken its force. As to the competency of an affidavit by a plaintiff" in the action for such a purpose, it was held to be competent and sufficient in Van Wyck v. Hardy, (20 How. Pr. 222.) That was a general term decision, which it is our practice generally to follow. The statute does not prescribe who shall make the affidavit, but it must "show that due diligence has been used, and that the person to be served cannot be found within the state, to the satisfaction of the court or judge. In the present case it will be seen from the facts stated in the affidavit, in respect to the inquiries made, and the grounds of belief and knowledge, that it furnishes far more satisfactory evidence of the defendant’s continual absence from the' state, than any proof of search by a sheriff or other officer, who was a stranger to him, could furnish.
As to filing the complaint in a case like this, I am of the opinion it is not necessary. Here the summons and complaint were served personally upon the defendant, within a short time after the order of publication was granted. The Code (§ 135) provides that when publication is ordered, personal service of a copy of the summons and complaint out of the state, is equivalent to publication and deposit in the post-office. The complaint, by the same section, is to be “ first filed,” “ in all cases where publication is made.” And in that case “the summons, as published, must state the time and place of such filing.” Here no publication was made, but the summons and complaint were served personally. The defendant having a copy of the complaint, there was no necessity of having it filed, where he could obtain a copy, or of a notice of the time and place of such filing, and the statute does not require it in such a case.
This depends upon the effect of the proviso in the amendment. A proviso in a statute always implies a condition, unless modified by subsequent words. The difference between an exception and a proviso in a statute is that the first exempts absolutely from the operation of the enactment, whereas the latter only defeats the operation of the enactment conditionally. (Bouv. Law Dict. tit. “ Proviso,” and cases'there cited.) A proviso is something engrafted on a preceding enactment, by way of limitation or otherwise, and is held to operate as a repeal of the ■purview of the act where it is inconsistent with it, as expressing the last intention of the lawgiver. (Smith’s Commentaries on Statute and Constitutional Law, 712.) The effect of the amendment most clearly is, that in the particular case in which a' warrant of attachment is properly issued, at the time of issuing the summons, or at any time
The plaintiff's counsel refers to section 139 of the Code, which provides that, from the time of the service of -the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction and-to have control of all the subsequent proceedings. I do not see that this section has any particular bearing upon the real question involved in this case. The court undoubtedly acquired jurisdiction in the case by the allowance of the provisional 'order or warrant, after the suit was provisionally commenced by the issuing of the summons. But whether it retained such jurisdiction after the lapse of thirty days, when the action could no longer be deemed to have been commenced, is quite another question. It is obvious that in such a case the jurisdiction of the court must be provisional or conditional, as was the commencement of the action, and ceases the moment the law ceases to regard the action as having been commenced and to be depending. My conclusion, therefore, is, that the plaintiff having failed to comply with the statutory conditions on which the action was deemed to be commenced by the issuing of the summons, it must be deemed not to have been commenced until the service of the summons and complaint, under the judge’s order, on the 8th of January, 1867. Up to that time no action had been commenced and none was depending, and the warrant of attachment had nothing to support it, but was wholly void, and should have been set aside.
The defendant asked also, by his motion, to have the order of publication set aside; but I do not see why that was not regularly granted, under the general provision for the service of a summons upon a non-resident defendant, without any reference to the attachment. So far as that is concerned, the order appealed from is correct.
The order, therefore, so far as it refuses to set aside the warrant of attachment, should he reversed, and an order setting aside the attachment granted, and in other respects affirmed. hTo costs of the appeal allowed to either party.
E. JO. Smith, Johnson and J. 0. Smith, Justices.]