Opinion
Submitted March 12, 1873
Decided June term, 1873
Jenkins Goodwill for the appellant.
Henderson Wentworth for the respondent.
The judgment of the Court of Appeals, in Kerr v. Mount (28 N YR., 659) is not decisive of this case. The Superior Court of the City of New York, it seems to be conceded, could obtain no jurisdiction in an action on contract for the recovery of money, against a non-resident of the State, until the summons had been personally served on the defendant. Besides, in that case, the attachment had been set aside for irregularity by the court whose process it purported to be, and it is very clear that the party at whose instance it was issued could not justify any proceedings under it. ( Chapman v. Dyett, 11 Wend., 31; Kerr v. Mount, 28 N.Y., 666, and cases cited.)
A proceeding in the Supreme Court by warrant of attachment against a non-resident debtor stands upon a very different footing, on the question of jurisdiction at least. Against the property of a non-resident, in an action for the recovery of money, the warrant of attachment may, if a cause of action is shown to exist, be issued at the time of the issuing of the summons or at any time afterward. (Code, §§ 227, 228, 229.) If it may be issued at the time of the summons, it must be regarded as regular process, and if effect be not given to it as a protection for seizing the property of the non-resident debtor, the proceeding would seem very idle. The very object of the attachment is to secure a lien upon the property of the defendant until by the appropriate proceedings the plaintiff can obtain judgment and have the property applied in its satisfaction. If it was to have no force until the summons had been personally served or a substituted service had been achieved by publication, under a proper order, it is difficult to see what object was intended to be accomplished by allowing the warrant of attachment to issue with the summons, which was not, and was never claimed to be, the technical commencement of a suit. The amendment made to the 227th section of the Code, in 1866, was but a legislative construction or declaration of the law as it previously existed.
The attachment was properly issued by the county judge of Chautauqua county. His powers in that respect do not seem to be restricted to cases in the Supreme Court to be tried in his county. (Code, § 228.) There was no application made to set aside the attachment for any irregularity of the party on whose behalf it issued, and it clearly was not absolutely void.
The order of the General Term granting a new trial should be reversed, and the judgment of the Special Term affirmed, with costs.
All concur.
Order reversed and judgment accordingly.