Travis v. Railway Educational Ass'n

Blanchard, J. This is an application to vacate a warrant of attachment because of the failure of plaintiff to effect a proper [578] service of-the summons upon defendant within thirty days from the granting of the attachment, as is provided by section 638 of the Code. The principal indebtedness in snit represents the assigned claim of one Edwin L. Scott, his claim being about $1,300 out of $1,500 involved. The attachment appears to have been granted on or -about October 13, 1900, and issned to the sheriff on or about October 15, 1900. Plaintiff claims that a proper service was made on said Edwin L. Scott, the assignor of the major portion of the claim in suit, who was, at the time service was made, October 15, 1900, the managing agent of the defendant. The defendant being a foreign corporation, a proper service upon a managing agent thereof could only be made, in a case where no person was designated to receive service, as is the case here, where none of the officers of the corporation could be found within the Sítate with due diligence. Code Civ. Pro. § 432. It does not appear upon this application that due diligence was exercised by the plaintiff to effect service upon an officer, as, immediately upon securing his attachment, he made service of the summons upon said Edwin L. Scott, and never made any other effort or took any other steps to secure a proper service. It appears that at the time of the service of the summons upon Scott, as managing agent, the president of the company, a man of some prominence, was a resident of the State, and that he was continuously a resident and within the State, for thirty days thereafter, and that the secretary and treasurer of the company, while temporarily absent from the State at the time service was effected, was within the State to the knowledge of the parties interested in sustaining the attachment, shortly after the issuing thereof, and that he remained here for some time. It does not appear that any effort whatever was made to serve the president of defendant, nor that due diligence was exercised by plaintiff. The mere statement of plaintiff that due diligence was exercised is insufficient. It is simply a conclusion and can have no weight. Bixby v. Smith, 3 Hun, 60; Putnam v. Griffin, 19 Wkly. Dig. 46; Peck v. Cook, 41 Barb. 549. It follows that the warrant of attachment must be vacated, with ten dollars costs. ■Warrant of attachment vacated, with ten dollars costs.