Marshall v. Canty

By the Court.—Hilton, J. This action was commenced by attachment, under the authority contained in section 20 of the District Court Act of 1857 (1 Laws of 1857, 713, ch. 344, § 20), which applies to these courts all laws relating to attachments issued by justices of the peace. The constable returned that he served a copy of the attachment and inventory of the property seized, upon the brother of the defendant, James Canty, the person in charge of the said goods, because the defendant could not be found in the city and county of Hew York, that place being the last place of residence of the said John Canty in this county.” The law requires that the officer executing the process “ shall immediately make an inventory of the property seized, and shall leave a copy of the attachment and of the inventory, certified by him, at the last place of residence of the defendant; but if the defendant have no place of residence in the county where the goods and chattels are attached, such copy and inventory shall be left with the person in whose possession the goods and chattels are found.” (2 Rev. Stat., 231, § 31; same stat., 5 ed., vol. 3, 431, § 29.) But if the defendant can be found in the county, the copy shall be served upon Mm personally, and the [239] return of the officer shall state specifically whether the copy was or was not personally served. (Laws of 1831, ch. 300, § 36; same stat., 3 Rev. Stat., 5 ed., 463, § 218.) The return made was defective, in not showing that the constable had complied with these provisions. It does not appear from it that the defendant had no place of residence within the county; but, on the contrary, it would seem to be inferred from it that he had; nor does it specifically state whether the copy of the attachment and inventory, was or was not personally served. The warrant of attachment is an extraordinary process of these courts, and before a justice can acquire jurisdiction to proceed to trial in an action thus commenced, the return of the officer must show a strict compliance with the statute. (Watts a. Willett, 2 Hilt., 212; Barnes a. Harris, 4 N. Y., 374.) And especially is this essential where, as in the present case, there has been no appearance of the defendant. (Stewart a. Smith, 17 Wend., 517; Wheeler a. Lampman, 14 Johns., 481.) It is a regular return only, showing that the property has been attached (3 Rev. Stat., 5 ed., 463, § 220), that can give jurisdiction in such a proceeding, and will authorize the justice to issue a summons, and proceed to a hearing of the cause in the absence of the party proceeded against. For aught that appears in this return, the defendant had a place of residence in the county; and if this was so, then the copy of the attachment and inventory should have been left there, instead of serving them upon the person in charge of the goods seized. It is only where the return shows affirmatively that the defendant had no such place of residence, that the statute permits the substituted service to be made. Judgment reversed.