Rhode Island Hosp. Trust Co. v. Keeney

• Decision Date: 02 February 1891
• Parties: Rhode Island Hospital Trust Co. v. Keeney.
• Court: North Dakota Supreme Court

1 N.D. 411

48 N.W. 341

Rhode Island Hospital Trust Co.

v.Keeney.

Supreme Court of North Dakota.

Feb. 2, 1891.

Syllabus by the Court.

1. Unless the summons in an action is served in the manner prescribed by law within 30 days after the issue of a warrant of attachment, the writ becomes void, and will be set aside on motion.

2. The summons and complaint mailed to the defendant were taken from the post-office by defendant's husband, and delivered to her in a sealed envelope. Held, not personal service, within the meaning of the statute permitting personal service without the state as a substitute for publication and deposit in the post-office.

Appeal from district court, Cass county; William B. McConnell, Judge.S. G. Roberts, ( Benton & Amidon, of counsel,) for appellant. Ball & Smith, for respondent.

Corliss, C. J.

Under section 5011 of the Compiled Laws, appellant, by motion, assailed the attachment issued against the defendant's property herein, having purchased the same subsequently to the levy of the warrant, founding his motion upon the alleged legal death of the writ. He urged that the summons had not been served within 30 days after the warrant was issued, and that under the express provisions of the statute the attachment fell. Having failed in his motion, he has taken this appeal. The mere issue of a summons confers upon the court jurisdiction to issue a writ of attachment, provided proper affidavit and undertaking are filed. For the special purpose of obtaining and levying such a writ, the action is deemed pending from the time the summons is issued. The court's jurisdiction, however, is conditional. Personal service of the summons must be made, or publication thereof must be commenced within 30 days after the issue of the writ, to preserve its life. Section 4993, Comp. Laws. Such service is a condition precedent to the preservation of such jurisdiction. Taylor v. Troncoso, 76 N. Y. 599;Mojarrieta v. Saenz, 80 N. Y. 658; Blossom v. Estes, 84 N. Y. 615; Millar v. Babcock, 29 Mich. 526. For the purpose of the issue and levy of an attachment, the action is deemed pending from the time the summons is issued, provided the summons is served personally or constructively within 30 days. Within 30 days of what particular period is not stated, but we are clear that such period is the date of the issue of the writ. This view is sustained by the decisions of New York, where the same provision is found. Taylor v. Troncoso, 76 N. Y. 599;Mojarrieta v. Saenz, 80 N. Y. 658; Blossom v. Estes, 84 N. Y. 615; Gribbon v. Freel, 93 N. Y. 93. No personal service was made within the state, nor was the summons published; but the summons and complaint were mailed to the defendant, directed to her at her place of residence without the state, and the sealed envelope containing them was handed to her by her husband, who took the mail from the post-office. This was not personal service of the summons without the state, within the meaning of the statute, which permits such service as a substitute for publication and deposit in the post-office. It was not personal service in any sense. It was but the completion of the transportation of the envelope and its contents by mail. Her husband did not pretend to, nor did he in fact, serve upon her any paper. He merely brought her her mail. The sealed envelope might with no different effect upon her rights have been handed to her by a letter carrier, or by some one at the post-office. It was not contended that the papers were personally served upon defendant, in the strict sense of the term. But it was urged that the statute providing for such service did not contemplate the same kind of service as is requisite where a personal judgment is sought to be obtained against a defendant by service of a summons within the state; that the main, and only important, purpose of the statute was to give the defendant notice of a suit in which jurisdiction of his property had already been secured by the issuance and levy of an attachment; and that the receipt of the summons and complaint by mail gave her such notice. In short, it is contended that jurisdiction is not obtained by the service without the state, but by the levy of the attachment antedating service. This view is based on an erroneous conception of proceedings by attachment. They are not, strictly speaking, proceedings in rem. Such proceedings are simply against specific property, or interests therein. No person is named in the proceeding as a party. The whole world is bound. The seizure is notice. It confers jurisdiction. No...