Lynn v. Allen

• Decision Date: 22 September 1896
• Docket Number: 17,988
• Citation: 44 N.E. 646,145 Ind. 584
• Parties: Lynn v. Allen et al
• Court: Indiana Supreme Court

44 N.E. 646

145 Ind. 584

Lynn v. Allen et al

No. 17,988

Supreme Court of Indiana

September 22, 1896

From the Marion Superior Court.

Affirmed.

Pickens & Cox, for appellant.

H Taylor, for appellees.

OPINION

Howard, J.

This was an action in attachment, brought against the appellant by the appellee, Arthur W. Allen. The appellant, who is a non-resident, entered his special appearance in the cause, and filed a plea in abatement, averring that there had been no service of process upon him, "other than the pretended service of publication in a daily paper called 'The Daily Reporter,' printed and published in the city of Indianapolis, said county," and "that said pretended service by publication is invalid and of no effect for the reason the said 'The Daily Reporter' is not a newspaper of general circulation in said county."

Issue being joined on the plea in abatement, and the evidence being heard, the court found for the said appellee, and judgment was entered in his favor.

It is claimed that the publication of notice in The Daily Reporter was insufficient to give the court jurisdiction over the appellant, for the reason that the said Reporter is not a "newspaper of general circulation," as required by the statute. Sections 320, 1299, etc., Burns' R. S. 1894 (sections 318, 1279, R. S. 1881).

The evidence upon which the court found the publication sufficient under the statute, was, substantially: That The Daily Reporter is now, and was at the time of the publication of said notice, in general circulation throughout the city of Indianapolis, in Marion county, and State of Indiana, among judges, lawyers, bankers, collection and commercial agencies, real estate dealers, merchants, manufacturers, and other professional and business men; that it is also on sale at public news stands; that its circulation in the city of Indianapolis is about 550 copies, and outside said city throughout the State, about 2,500 copies daily; that its circulation is confined to no particular class or calling of the community, but is general among different classes; that it is published and circulated daily, except Sunday; that its columns are devoted primarily to the dissemination of legal matters, including proceedings of the Supreme and Appellate Courts of the State, and of the various Federal, State, county and city courts sitting at Indianapolis, giving a complete report, both of the pleadings filed in cases pending, and also of cases tried and the result of such trials, as well as publishing those upon the calendar for trial, and all new suits filed; that it also publishes the proceedings of the Board of Public Works of said city, giving said board's action in all matters relating to street and other improvements, and assessments against real estate on account thereof, and all matters of interest in relation to real estate generally; that it gives daily a complete record of the deeds filed in the recorder's office of said county, also of mortgages, mechanics' and other liens, assignments and sales of real estate by the sheriff under judicial process; that it also contains one or more columns devoted to the general news of the day of interest to general readers; also quotations of local securities of interest to newspaper readers generally; that it is the only newspaper published in said city containing a complete passenger time table of all railroads entering and leaving said city; that legal notices like the one in the case at bar have been made and published in said newspaper, as well as legal notices advertising sheriff's sales of real estate, and sales by executors or commissioners, and notice of appointments of administrators and executors; that it also contains varied advertising matter, confined to no one calling or trade, but such as is found in newspapers of general circulation; that there is also published in it news and information of a general character, such as is published in other newspapers of general circulation, and of interest to the general reader.

A copy of The Daily Reporter was also filed as an exhibit, and shows the general character of the paper to be such as is above set forth.

We think that the foregoing evidence shows, as the court found that the publication in question is a "newspaper of general circulation," "printed in the English language and published in the county." Such notice would not, of course authorize a personal judgment in the main action against appellant, who is a non-resident, but only a judgment in attachment against his property, and also support the proceedings...