Sanford v. Dick

Hinman, J. Whether the plaintiff’s charge for cash lent, was barred by the statute of limitations, depends upon whether this suit was commenced on the 28th day of February, 1843, when the officer attached real estate by virtue of the writ, or not until the 4th of March following, when the copy was left in service with the defendant. That it is the service of the writ, that, in this state, is the commencement of an action, and not the issuing of it, is well settled, and is not denied. But the question here is, what is the service, and when shall it be deemed to be so far completed, that the action may be said to be commenced, and the further operation of the statute of limitations upon the claim prevented ? Service, in one sense, may properly be said to be, any thing done by virtue of the authority contained in the writ. But is this the service that commences an action ? The plaintiff insists that it is; that all subsequent proceedings relate to the first act of the officer ; consequently, the attachment being a part of the service, this suit was commenced when the officer went upon [216] the defendant’s land and attached it; and therefore, his claim -is saved from the operation of the statute. If the attachment was, by itself, any part of the means of giving the defendant notice of the suit, there might be some foundation for this claim. But the attachment merely operates upon the property, and holds it in a condition to be made available for the satisfaction of the judgment that may be recovered. It has no efleet in bringing the defendant before the court. It is a part of the service of the writ, only because it is done by virtue of the authority contained in it. But it is no more notice to the defendant than is the signing, or any other thing that is required to be done in order to perfect the process. As an attachment, it may be wholly inoperative; as if no bond is given, when it is issued, or no copy left with the town-clerk, where real estate is taken. And yet this would not operate to abate the suit, provided the writ was read to the defendant, or a copy of it left in service as a summons. In all suits brought to the superior or county court, the statute requires that service shall be made twelve days before the sitting of the court. Service, as here used in the statute, obviously means the commencement of the action; but no one would claim, that any thing less than notice given to the defendant, is intended by it. We think, therefore, that the term service, as applied to the commencement of a writ, is that notice given to the defendant which makes him a party to the proceeding, and makes it incumbent on him to appear and answer to the cause, or run the risk of having a valid judgment rendered against him, in consequence of his default. It follows irom this, that the remonstrance to the report of the auditors, in this case, must prevail; and the superior court is accordingly so advised. In this opinion the other Judges concurred, except Storks, J., who was absent. Judgment for defendant.