Trask v. Key , 4 Greene 372 ( 1854 )

Opinion by

Greene, J.

An action to foreclose a mortgage against P„ P. Trask. Notice returned into clerk’s office by tbe coroner, declaring tbe defendant to be a non resident of the State.. Date of return, July 29, 1853. It appears of record, tbat notice by publication was commenced on tbe 25th of July, four days before tbe return of tbe original notice. There is no evidence tbat service was attempted, by directing tbe notice through tbe post office, as provided by Code, § 1826; and still tbe court below decided tbat the defendant was in default, and rendered a decree against him accordingly. This decree was obviously unauthorized.

Tbe record shows tbat defendant was a non-resident of the state, and it may well be questioned whether be was even subjected to tbe jurisdiction of tbe court. But if be might have been brought within tbat jurisdiction, the proceedings clearly show tbat he was not, by any authoi'ized process.

1. The original notice was not returned to the court — • “ not found ” — before tbe notice by publication was commenced.

2. There was no copy of tbe petition and notice sent to tbe defendant through the post office, as required by tbe Code, § § 1826, 2497.

At tbe last term of this court, it was held tbat notice by publication' is not good unless these directions are observed.^(a)

J. Butler and II. O’Connor, for appellant, B. F. Wright, for appellee.

Judgmentrevereed,

(a) Pinkney v. Pinkney, Ante., 3.