Walker v. Hughes

132 F. 885 | S.D.N.Y. | 1904

HORT, District Judge.

This is a motion to vacate the service of a citation in an action in personam in admiralty. The service was made by exhibiting to a servant in the defendant’s family, at his residence, the original citation, and leaving with her a copy thereof. There appears to be no statute or rule of court expressly providing how citations in admiralty shall be served, and no decisions on the point have been brought to my attention. Subpoenas in equity suits in the United States Court may be served by leaving a copy at the defendant’s residence. Equity Rule 13. The general rule at common law was that every process might be so served, except those which are enforced by proceedings for contempt. Johnston v. Robins, 3 Johns. 440; Jackson v. Griffiths, 4 Term R. 465. In Betts’ Admiralty Practice (page 32) it is said that such a service is sufficient in an admiralty suit in personam; but in Conklin’s Admiralty Practice (volume 2, p. 146) and in Benedict’s Admiralty Practice (section 421) it is asserted that the service must be personal. By the present English practice, a citation in a suit in personam must be served personally, unless the court makes a special order, authorizing it to be served in some other way. Williams & Bruce on Admiralty, p. 328. The second admiralty rule of the Supreme Court and the ninth admiralty rule of this court provide, in substance, that if the defendant cannot be found, his goods may be attached. The libelant’s counsel asserts that the defendant is evading service, but I think that the libelant’s remedy is to take out a citation with a clause of attachment under the ninth rule. It would be a dangerous precedent to allow a judgment in personam to be obtained without personal service or attachment.

Motion granted.