Seaver v. Fitzgerald

California Supreme Court Jul 1, 1863Published

Before: Crocker

AI Brief

AI-generated · verify before citing

Holding. The court held that an attachment remains valid even if subsequent proceedings in the underlying action are irregular, and that a summons returnable in more than ten days is permissible when service is made by publication.

Issues

Whether an attachment is invalidated if the initial summons is returned unserved and a new summons is issued.
Whether an affidavit and order for publication were sufficient to support service by publication.
Whether a summons returnable more than ten days from its date is invalid under the Practice Act.
Whether irregularities in obtaining a judgment discharge a previously valid attachment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A summons was duly issued before or at the time of the issuing of the attachment, and the attachment was therefore valid when it issued.”

“The return of the officer that the party could not be found is sufficient evidence of proper diligence”

“Even if the plaintiffs in that action had failed to obtain a valid judgment that fact alone would not operate as a release or discharge of the attachment, which had been regularly and legally issued.”

Synopsis

In a suit commenced before a Justice of the Peace, if the summons be returned by the officer with his indorsement thereon that no service has been made because defendant cannot be found, and on the return day thereof it is further made to appear by affidavit that the defendant conceals himself to avoid service of process, the suit does not thereby abate, but the magistrate may continue the cause, issue a new summons, and make an order for its service by publication, and fix the return day of the new summons at a time sufficiently remote to have the service by publication completed before the return day, even if the period between the issuance of the new summons and its return day exceeds ten days.

In such case when an attachment is regularly issued by the Justice, at the time of the issuance of the first summons, the attachment is not vitiated by the failure to serve the first summons and the issuance of a second one, nor is the validity of attachment in any way affected by the proceedings.

The affidavit stated that the “defendant, D. C. Seaver, was at the time a resident of the first township in the County of Contra Costa; that he had occupied a house on a tract of land claimed to be his own and which he had cultivated up to the commencement of the suit and for a long time previous; that on the twenty-second day of October, the day before the commencement of the suit, he left his residence informing his servant that he would be back that evening or the next day; that the summons in the suit was put in the hands of a proper constable, who made diligent search and was wholly unable to serve it; that Seaver had not returned to his residence, and that he believed he concealed himself for the purpose of avoiding the service of the summons, and that the claim sued on is a just debt.”

Held, to be sufficient to authorize the service by publication, and when publication made to give the Court jurisdiction.

An order of publication of summons, made by a Justice, need not state that the paper designated “ is the one most likely to give notice to the person to be served.”

The publication of summons may be proved by the affidavit of the Clerk of the publisher of the paper, and the fact that the summons was deposited in a post-office may also be proved by affidavit; nor is it necessary that the constable state in his return on the summons that such publication was made and such deposit made in the post-office. ,

When the contract sued on is a joint contract of two defendants, and judgment is entered up against one only, it is not such an error as renders the judgment void so that it can be attacked in a collateral proceeding.

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover the possession of certain personal property. The plaintiff claims title thereto by virtue of a bill of sale from D. 0. Seaver, the former owner; but before a change of possession had been effected, under the bill of sale, the property was levied upon by the defendant, a constable, under an attachment issued by a Justice of the Peace in an action of Hagy & Grill against D. 0. Seaver & J. W. Crosby, and the defendant claims the right to hold the property by virtue of the levy under this attachment. The Court below held this levy and attachment to be valid, and a verdict was rendered for the defendant, from which the plaintiff appeals. .

It appears that at the time the attachment issued, a summons was also issued in the action, dated October 23d, 1860, and made returnable October 27th, 1860. On the return day this summons was returned not served. Thereupon the Justice of the Peace, upon an affidavit that the defendant concealed himself to avoid the service of summons, made an order that the summons be served by publication for one week, and a new summons was issued, dated October 27th, and made returnable November 7th. Upon proof of the publication of this summons a judgment by default was entered against the defendant, D. C. Seaver. Before any execution was issued on this judgment the present action was commenced.

The plaintiff contends that the second summons was the summons in the case, because that was the summons served by publication, [90]and as the writ of attachment was issued before this second summons, it was therefore void, under Sec. 551 of the Practice Act. This point is clearly untenable. A summons was duly issued before or at the time of the issuing of the attachment, and the attachment was therefore valid when it issued. The fact that the defendant absented himself so that that summons could not be served on him before the return day thereof, and that it was returned not served, could not have the effect of vitiating the attachment. No rule of law or 'provision of statute has been referred to by counsel to sustain any such position, and such a principle would be most pernicious in its consequences. It would only be necessary for a debtor to conceal himself for a few days, until the return day of a summons issued against him had passed, to invalidate any attachment which had been issued against him. A principle so manifestly unjust in its results could only be sustained by clear and positive statutory provisions, which do not exist in our laws. The argument of the appellant is based upon the idea that a plaintiff is entitled to only one summons in an action, and that if he fails to procure a service of that summons within the time fixed for its return, and it is therefore returned not served, the action is thereby abated or determined, that the attachment falls with it, and the issuing of a new summons is the commencement of a new suit. This argument is without foundation, as the plaintiff in such case is entitled to a new summons and a continuance of the case until such time as he can procure a service of the same, by publication or otherwise,, and the suit is not abated or determined thereby, nor is the attachment in any way affected by the proceeding.

Seaver v. Fitzgerald

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief