Van Wyck v. Hardy , 20 How. Pr. 222 ( 1860 )

By the Court.—Hogeboom, J.

I. The objection to the summons is not well taken. Samuel A. Maverick and wife were, and were intended to be, parties to the suit. The summons is not necessary to be filed as a mode of commencing the suit, and if filed, and erroneous by inadvertence or mistake in some way as to the names of the parties, is not conclusive to that extent on the point of who are parties to the suit, that it is incapable of contradiction or correction. It is not necessarily the summons in the suit by way of eminence over all others. In this case, these two names were omitted in the copy filed by inadvertence, and I have no doubt the error is such as may be corrected by amendment. This has been done, and the error is cured.

II. The second alleged jurisdictional defect is, that the non-residence in this State, and the actual place of residence of the defendants Thomas J. Turpin and Drusilla E. L. Dillard, are not sufficiently established in the affidavit upon which the order of publication was founded, or in the order itself. By the complaint in the action, which is verified and is presumed to have been presented to the judge before he made the order of publication, it appears that the suit is brought for the partition of premises in the city of Hew York, and that the plaintiffs are the tenants in common and the’near relatives of the other parties in interest. By the affidavit of the plaintiff, William Van Wyck, on which, more particularly, the order of publication was founded, the non-residence in this State, and the actual residence in South Carolina of Thomas J. Turpin and Drusilla E. L. Dillard, is alleged on the deponent’s information and belief. In said affidavit it is further alleged as follows: “And deponent further says, that after due and diligent search and inquiry by this deponent, the said defendants named in the body of the affidavit cannot be found in the State of Hew York, as he is informed and verily believes.” The order recites that it appears to the court that these defendants are non-residents of the State of Hew York, and cannot be served with said summons in the State of Hew York. The written statement of facts agreed on by counsel shows that on the 22d day of October, 1859, a copy of the summons and complaint were deposited in the post-office, addressed to each of said non-resident defendants at their respective places of residence. I am inclined, though with some hesitation, to regard this proof as sufficient to confer jurisdiction upon the judge to make the order—as sufficient to satisfy him legally of the non-residence and the place of residence of these parties, and of the inability to find them in this State. The affidavit is made by a relative who would be likely to know or to ascertain the real truth of the case. And when he speaks of information and belief in regard to a matter of this sort, it is obvious, from the subject-matter of the inquiry, and from the context in the affidavit itself, that he refers to information obtained from the proper source, and from those who would be likely to know. The effort to find these defendants in the State, I infer from the affidavit, was made by the deponent, and the inability to find them, was thereupon stated on information and belief. He could not well have absolute and positive knowledge on that subject, although he could speak positively, as I think he intended to do, on the exercise of diligence. As to the actual non-residence of these defendants, it is not controverted ; and the purchaser of premises, at a sale in a suit where publication has been ordered, must be deemed to know that he purchases subject to the power of the court to relieve parties against whom publication is ordered, upon good cause shown, both before and after judgment,_ within seven years after the rendition thereof. I am inclined to think also that the judgment itself is of no effect in any case where it subsequently appears that the case does not fall within one or more of the five different subdivisions of section 135, in which contingency alone can publication ever be properly made. (Code, § 135.)

III. The publication of the summons in the Evening Post I do not regard as so defective as to make it void. It could not mislead. It sufficiently indicated the city of New York as the place of business of the plaintiffs’ attorney. New York was given as the date of the summons and the place where the complaint was filed, and no other place was named to which the reference as to the street could possibly refer.

IV. The order properly required the summons and complaint to be served upon non-residents, by depositing the same forthwith in the post-office, directed to such persons. The order was made on the 18th of October, and the deposit in the post-office was on the 22d. The delay is sufficiently excused. If forthwith means instantly, a literal compliance with the order and with the statute is almost impossible. Some little time, therefore, may be permitted to elapse without forfeiting jurisdiction over the person of the defendant.

A reasonable construction must be given to this provision; and I do not see that any absolutely uniform and inflexible period can be established as amounting to a compliance with the statute, non-conformity to which will make the proceedings void. Forthwith has no legalized meaning, either extending or limiting it to twenty-four hours; and the Legislature, having used a term incapable of being rigorously complied with to the letter, must have intended to authorize the courts to put a reasonable interpretation upon the term; and the period, I think, may vary slightly according to the circumstances of the particular case. This may lead to some doubt and hesitation in advising as to the validity of these proceedings, and to some uncertainty as to what will be the decision of the court in a particular case, but that is incident to the very nature of judicial proceedings. The only corrective is with the Legislature, by prescribing a fixed period of time within which the service is to be made. In the absence of such an enactment, I think the word forthwith, in this connection, should be construed as synonymous with all reasonable dispatch. So construed, the order and the statute have been complied with in the present case.

V. The appointment of the guardian ad litem for the defendant, Samuel M. Thompson, though not strictly formal and conformable to the rules of the court by reason of the non-verification of the petition by the infant, was not, I think, jurisdictionally defective. The court had the power to recognize and make valid any other mode of verification of the. petition which satisfied it of the truth of the facts therein contained. There is no such unbending rigor in the practice of the court. The importance of the petition consisted in its being the voluntary act of the petitioner.

This would appear as strongly, perhaps, by proof of the execution of the paper by the infant as by its verification by him. The execution was sufficiently established. At all events, the error, if any, was cured by the procurement (which we understand has been done) of a proper petition duly verified, and filing the same in the proper office—in conformity with the order of the special term, which very properly required that this should be done, as an efficient protection to the purchaser.

The order of the special term seems to me to have been substantially right, and should be affirmed. Both parties have appealed therefrom, and I think the affirmance should be without costs to either party as against the other.

Sutherland, J., concurred.

Bonney, J., dissented.