Mercantile Nat. Bank v. Barron

165 F. 831, 1908 U.S. App. LEXIS 5425

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 11, 1908
• Status: Published

Opinion

WARD, Circuit Judge.

July 10, 1908, the plaintiff, a corporation of the state of New York, began this action in the Supreme Court of the state against the defendant, a citizen of the state of Massachusetts, by filing a complaint, with an undertaking in the sum of $2,500, upon which a warrant of attachment was issued to he sheriff against the defendant’s property. July 11th the sheriff levied the attachment on property.in the hands of the plaintiff. July 31st, ripon sheriff’s return that the defendant could not be found and upon proof of nonresidence, an order was made directing service of the summons by publication. September 23d the defendant appeared specially, removed the case into this court, and now moves to set aside the order of publicatibn on the ground that it was granted because of the nonresidence of the defendant; the moving papers not showing that he had any property in the state. The. proceedings conformed to the practice in the state courts. Section 439 of the Code of Civil Procedure does not require proof that the defendant has propert}' within the state. Before the order of publication was made property of the defendant had been attached,' and any judgment recovered could only be enforced against the property levied on. Section 707, Code Civ. Proc. The action comes into this court in the condition it was in when removed from the state court. Act March 3, 1875, c. 137, § 4, 18 Stat. 471 (U. S. Comp. St. 1901, p. 511). Service of summons by publication will be sufficient to sustain a judgment in this court against the defendant, restricted to the property that has been attached. Clark v. Wells, 203 U. S. 164, 27 Sup. Ct. 43, 51 L. Ed. 138.

Motion denied.