Towle v. Covert

15 Abb. Pr. 193, 49 How. Pr. 120

Opinion

By the Court.

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The action was upon contract for the recovery of money only. Prior to the act, chap. 239, Laws of 1873, this court would have jurisdiction of the action if the defendant resided in the city of New York, or was served with the summons therein (Code, §33). The action having been brought after the passage of the act aforesaid, the court, on proof'that the defendant was not a resident of this State, and could not be found therein, but had property therein liable to attachment, made an order for tho publication of the summons and service by mail thereof, and granted a warrant of attachment against de fendant’s property. On failure of defendant to answer, and on due proof of service by publication of summons, and of levy under the attachment issued, judgment was entered against the defendant.

The judgment was irregular, this court not having acquired jurisdiction (Landers v. Staten Island R. R. Co., 14 Abb. Pr. N. S., 346). The order of publication, the judgment and all proceedings thereunder, and the levy under the attachment must be set aside.

The warrant of attachment will not be set aside, because it may be issued before the summons is served (Woodward v. Stearns, 10 Abb. Pr. N. S., 395); but defendant may move to vacate it on further papers as he shall be advised.

Present, Daly, Ch. J., and Robinson and J. P. Daly, JJ.