Hankinson v. Page

Decision Date16 June 1887
Citation31 F. 184
PartiesHANKINSON v. PAGE.
CourtU.S. District Court — Southern District of New York

Lewis Sanders, for plaintiff.

Alfred R. Page, for defendant.

WALLACE J.

Exceptions have been filed by the plaintiff to the rulings of the referee before whom this action was tried, and a motion for a new trial is founded upon the errors alleged by the exceptions. The action was brought originally in the supreme court. The only question litigated on the trial before the referee was whether jurisdiction was obtained by the state court over the person of the defendant by due service of process. The defendant was a non-resident of the state, and the action was sought to be commenced against him by the levy of an attachment upon property alleged to belong to the defendant within this state. The defendant did not appear generally in the action, but appeared by attorneys, who served a special answer in the action 'for the purpose of raising the issue as to the jurisdiction of the court only. ' The answer alleged that the court did not have jurisdiction, because the summons was served upon the defendant at Rutland, in the state of Vermont; and that although a warrant of attachment was granted against the property of the defendant, he did not have any property in this state, and no levy had been made upon his property. The qualified appearance of the defendant was not a waiver of the objection which the answer was interposed to raise. A general appearance in the action would have been a waiver. Commonly such an objection is raised by a motion to dismiss the summons, but in some cases the question presents an issue of fact which can be more satisfactorily determined by an answer in the nature of a plea in abatement. Sections 488 and 498 of the Code of Civil Procedure expressly authorize the defendant to present the objection by an answer. The case of Hamburger v. Baker, 35 Hun, 455, is directly in point, to the effect that such an answer as was interposed here is not to be regarded as a general appearance in the action, and authorizes the defendant to contest the fact whether the court acquired jurisdiction by sufficient service of process.

If the attachment issued by the state court was levied upon the property of the defendant, the court acquired jurisdiction to the extent necessary to satisfy the plaintiff's demand out of the property seized. By the provisions of the Code of Civil Procedure of this state, an attachment may be levied upon 'a cause of action arising upon contract, including a bond, note, or other instrument for the payment of money only, negotiable or otherwise,' whether past due or yet to become due, which belongs to the defendant, (section 648;) and the sheriff who executes the writ must collect all debts effects, and things in action subject to the direction of the court, and may maintain any action or special proceeding in his own name, or name of the defendant, which is necessary for that purpose, (section 655;) and it is made his duty to take into his custody all books of account, vouchers, and other papers relating to the property attached, (section 644.) It is provided by section 649 that a levy under a warrant of attachment must be made 'upon personal property, capable of manual delivery, including a bond promissory note, or other instrument for the payment of money, by taking the same into the sheriff's actual custody. ' The same section provides that the levy upon other personal property must be made by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same; or, if it consists of a demand other than a bond, promissory note, or other instrument for the payment of money, by leaving a certified copy of the warrant and notice with the person against whom the demand exists.

The levy in this case was sought to be made by serving a copy of the warrant and notice upon several insurance companies which had issued policies of insurance upon the life of John B. Page, then lately deceased, of whom the defendant was one of the heirs at law, but without an attempt by the sheriff to take the policies into his actual custody. Similar service was made upon the National Benefit Society. This was a benevolent association of which John B. Page was a member up to the time of his death. That association had not issued a policy of insurance, but at the time of the service of the warrant of attachment was under a contract liability to the heirs at law of John B. Page to assess upon and collect from the several members of the association the sum which each member had agreed to pay on the death of another member, and was obligated to pay the sum thus collected from its members, to an amount not exceeding $5,000, to the heirs at law of John B. Page. The defendant, in conjunction with the other heirs at law of John B. Page, had a vested demand against the association which was not then payable, but would become payable shortly thereafter, and upon non-payment could proceed by appropriate remedy to compel the association to assess, collect, and pay the amount of its obligation. Unless the defendant's demand against that association falls within the category of personal property 'capable of manual delivery, including a bond, promissory note, or other instrument for the payment of money,' the sheriff was not required to take anything into his manual custody, but had made due service by leaving a certified copy of the warrant and notice with the association. The only instrument evidencing the obligation of the association to collect and pay the sum mentioned to the heirs at law of John B. Page upon his death was a certificate of membership in the association which had been delivered by the association to John B. Page. This certainly was not an evidence of debt in the ordinary acceptation of that term, like bonds, notes, and ordinary instruments for the payment of money. Even a policy of insurance would not fall within this description. People v. Brown, 6 Cow. 41; Tyler v. Etna Ins. Co., 2 Wend. 280.

All contracts which contain an obligation for the payment of money by one of the parties are, in one sense, instruments for the payment of money. A contract in writing for the building of a house between the owner and builder is in this sense an instrument for the payment of money on the part of the owner, although the...

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3 cases
  • Brooks v. Dun
    • United States
    • U.S. District Court — Western District of Tennessee
    • 3 Junio 1892
    ... ... Montgomery, 17 ... F. 865, 866; Hendrickson v. Railway Co., 22 F. 569, ... 570; Miner v. Markham, 28 F. 387, 395; Hankinson ... v. Page, 31 F. 184; Perkins v. Hendryx, 40 F ... 657; Clews v. Iron Co., 44 F. 31, 32; Forrest v ... Railroad Co., 47 F. 1, 2, ... ...
  • State v. Heaton
    • United States
    • Washington Supreme Court
    • 8 Julio 1897
    ... ... memoranda." 1 Bouv. Law Dict. p. 815. In Anderson's ... Law Dictionary, at page 555, it is said that the expression ... "written instrument," or "instrument in ... writing," "does not comprehend all written ... the primary motive." See, also, State v ... Kelsey, 44 N. J. Law, 1; Hankinson v. Page, 31 ... F. 184. We think that, within the rule of noscitur a sociis, ... the words "or any other instrument in writing," as ... ...
  • Dillingham v. New York Cotton Exchange
    • United States
    • U.S. District Court — Southern District of New York
    • 6 Febrero 1892
    ... ... the duty of levying an assessment upon the other members for ... him as next of kin to the deceased member. Hankinson v ... Page, 31 F. 184. If the assessment had been made, ... payment of the sum that should 'actually be collected and ... received,' without ... ...

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