Niles v. Vanderzee , 14 How. Pr. 547 ( 1855 )

Harris, Justice.

Upon the facts as they appear upon this motion, it is very clear that the attachment ought not to have been allowed. On the other hand, there was evidence enough before the judge who granted the warrant, to give him jurisdiction. The attachment was, therefore, regularly issued. Whether or not the defendant had absconded, was a question of fact which the judge was called upon to decide upon the evidence before him. The order being regular and having been made upon sufficient evidence to confer jurisdiction, can only be reversed upon appeal. (Conklin agt. Dutcher, 5 How. 386 ; Bank of Lansingburgh agt. McKee, 7 How. 360.) The latter case was affirmed upon appeal, though I am not aware that the decision of the general term has been reported. (See also The New- York and Erie Bank agt. Codd, 11 How. 221.) I am not at liberty, therefore, upon this motion, to set aside the attachment, even though I may be satisfied that it ought not to have been granted.

But I think the judgment should be set aside. If the plaintiff’s attorney had intended to abandon his proceedings against the defendant, as an absconding debtor, and to proceed against him upon a personal service of the summons and complaint, he should have so informed him. The publication of the summons was continued after the personal service upon which the plaintiff relies, as before. The defendant had no reason, from anything that was said or done at the office of the attorney, on the 20th of June, to suppose that it was intended to abandon the proceedings already instituted and in progress. It is evident from the defendant’s affidavit, that he did not so understand it. The attorney should have distinctly informed the defendant that he intended, notwithstanding the order of publication already obtained, to avail himself of the opportunity of commencing his action by personal service, and that the copy, summons and complaint, were delivered for that purpose. The judgment having been perfected as upon personal service, and before the order for publication had expired, was irregularly entered and must be set aside. The defendant should have the usual time to answer the complaint after being served with a copy, and as neither party has wholly succeeded upon this motion, neither.should.have costs against the other.