Opinion
July Term, 1900.
Henry B. Kinghorn, for the appellants.
Edward Hassett, for the respondents.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, O'BRIEN and HATCH, JJ.
This is an action brought under section 677 of the Code of Civil Procedure, which authorizes the plaintiff in an attachment suit, jointly with the sheriff, to bring an action to recover a demand attached. To entitle the plaintiff to recover in such an action, it is necessary for him to prove a valid attachment. The warrant of attachment which lies at the foundation of this action was issued out of the City Court of New York. The complaint alleged that such an attachment was duly issued, and, therefore, under the requirements of section 532 of the Code, that allegation was sufficient to authorize the plaintiff to give proof of all jurisdictional facts which were required to show that the attachment was a valid one. The plaintiffs offered in evidence the attachment, which was admitted over the objection of the defendants. The plaintiffs also offered in evidence the affidavits upon which the attachment was granted. These were objected to by the counsel for the defendants, and they were thereupon withdrawn before the court had ruled upon their admissibility. Subsequently, the counsel for the defendants withdrew his objections to the admission of the affidavits and consented that they might be put in evidence, but the plaintiffs' counsel, although advised of the withdrawal of the defendants' objection, refused to introduce them in evidence, and consequently the affidavits nowhere appear in the case.
The attachment was issued on the 1st of March, 1890. It was not made to appear in the case that any summons was issued to accompany the attachment or at any time thereafter, and there was no evidence bearing upon the jurisdiction of the court which issued the attachment, or which tended in any way to establish such jurisdiction, except such as might be found in the warrant itself. The warrant was issued out of the City Court of New York, which is a court of special and limited jurisdiction. ( Ford v. Babcock, 1 Den. 158.) In such a case, the rule is well settled that there is no presumption that jurisdiction exists, but the facts showing that it was acquired must be made to appear as a condition of the validity of any process issued out of the court. ( Frees v. Ford, 6 N.Y. 176; Ford v. Babcock, supra; Beaudrias v. Hogan, 16 App. Div. 38. ) As no proof was given on this subject, the defendants' objection to the validity of the attachment, which was several times taken during the progress of the trial, was well founded.
But if the affidavits had been received in evidence, and had been sufficient to raise a presumption of the jurisdiction of the court, yet there is a defect which, unless it is remedied, is fatal to this action. Section 3170 of the Code gives directions as to the manner of the service of a summons issued out of the City Court of New York, and it prescribes that section 638 of the Code applies to actions in that court. Section 638 authorizes the issue of a warrant of attachment to accompany the summons, but it prescribes that personal service of the summons must be made upon a defendant against whose property a warrant of attachment is granted within thirty days after the granting of the warrant, or else before the expiration of the same time service of the summons by publication must be commenced or service thereof must be made without the State, pursuant to an order obtained for that purpose, as prescribed by the Code. While this section gives the court jurisdiction to issue a warrant of attachment before the service of the summons, yet such jurisdiction, when obtained, is conditioned upon the service of the summons within thirty days, as prescribed in section 638, and if the summons has not been served as there prescribed the jurisdiction falls to the ground and the proceedings thereafter are the same as if jurisdiction had never been acquired. ( Waffle v. Goble, 53 Barb. 517.) Therefore, although the City Court might have acquired jurisdiction to issue the warrant of attachment, and although the levy under the warrant may have been sufficient, yet, as no summons was served within thirty days, the jurisdiction obtained failed, and the warrant and all proceedings under it were of no force.
The point is made by the respondents that under section 682 of the Code the defendants here are not in a situation to raise the question of the validity of the attachment, but that is not so. The validity of the warrant is a condition precedent to the maintenance of this action, and unless it is valid the action cannot be maintained. Section 682 does not apply to any such situation, but it only specifies the conditions under which, and the persons by whom, a warrant, otherwise valid, may be vacated or modified upon application to the court. The record shows many other objections, some of which are undoubtedly well taken, but as the judgment must be reversed and a new trial granted for the defect above mentioned, it is not necessary to consider any of the other exceptions.
The judgment must be reversed and a new trial granted, with costs to the appellant to abide the result of the action.
Judgment reversed, new trial granted, costs to appellant to abide event.