Kieley v. Cent. Complete Combustion Manuf'g Co.

• Decision Date: 10 December 1895
• Citation: 42 N.E. 260,147 N.Y. 620
• Parties: KIELEY v. CENTRAL COMPLETE COMBUSTION MANUF'G CO.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 620

42 N.E. 260

KIELEY

v.CENTRAL COMPLETE COMBUSTION MANUF'G CO.¹

Court of Appeals of New York.

Dec. 10, 1895.

Appeal from common pleas of New York city and county, general term.

Action by Timothy J. Kieley against the Central Complete Combustion Manufacturing Company. From an order of the general term (34 N. Y. Supp. 106) affirming an order of the special term denying a motion to vacate an attachment, defendant appeals. Reversed.

Melville Egleston, for appellant.

Charles J. Hardy, for respondent.

HAIGHT, J.

The motion to vacate the attachment was made upon the ground that personal service of the summons had not been made, nor publication thereof commenced, within 30 days after the granting of the attachment. The Code of Civil Procedure (section 638) provides that ‘personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof; 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 therefor, as prescribed in this act; and if publication has been, or is thereafter commenced, the service must be made complete by the continuance thereof.’ It is claimed that the service of the summons is sufficient to sustain the attachment, if the defendant had notice in time to resist the claim made against it, even though the service was not such as would sustain the entry of judgmenton default; relying upon Chemical Works v. Jochen, 8 Civ. Proc. R. 424. Ought the provision of the Code to receive such a construction? It will be observed that it states that ‘personal service of the summons must be made,’ etc. This enactment has already received attention in several cases. In Blossom v. Estes, 84 N. Y. 615, a motion was made to vacate an attachment on the ground that the summons was not personally served, nor publication thereof commenced, within 30 days from the issuing of the warrant. The motion was denied at special term, but, upon appeal to the general term, the order was reversed, and the motion granted. That order was affirmed in this court, upon the ground that the attachment was rendered void by a failure to serve or publish the summons within the time specified. See, also, Taylor v. Troncoso, 76 N. Y. 599;Mojarrieta v. Saenz, 80 N. Y. 547; Cossitt v. Winchell, 39 Hun, 439; Waffle v. Goble, 53 Barb. 517, 522. It is true that the object of service is to give notice and an opportunity to defend. But it must be made in the manner prescribed in the statute. Gibbs v. Insurance Co., 63 N. Y. 114;Hiller v. Railroad Co., 70 N. Y. 223;Pope v. Manufacturing Co., 87 N. Y. 137. Service of the summons is required by the Code. It can be made personally, by publication, or, in some cases, by substituted service in the manner pointed out by the Code. Jurisdiction is only acquired by service in accordance with one of the forms prescribed. The meaning of the language quoted is quite apparent. It is clear and unequivocal. It is used in the formation of a system of practice, in connection with other provisions, which are intended to be in harmony with it. We cannot believe that it was contemplated that a form of service was intended to be sufficient to sustain the attachment and not sufficient to support the judgment. In this case the attachment was levied upon money belonging to the defendant in the hands of one Rutzler, and at the same time the sheriff left with him a copy of the summons and complaint, together with copies of the attachment papers. A few days thereafter he delivered the papers...