Klein v. Adams Express Co.

The opinion of the court was delivered by Lippincott, J. It appears by the ex parte affidavits upon which the rules to show cause were allowed that the Adams Express Company, the defendant, is a joint stock association organized under the laws of the State of New York, and that •the principal place of business is in the city of New York, and that it had a president and treasurer, and that under the laws of the State of New York actions are authorized to be brought against the president or treasurer, and that the statute of the State of New York directs the service of process in such actions so instituted shall be made upon the president •or treasurer thereof. These actions in this, state were brought against the defendant, in the name of the Adams Express Company, and the service of process was made upon one John B. Darby, the local agent of the defendant at the city of Camden. The rules to show cause herein were allowed upon the ex parte affidavits tending to'show that he was not the proper party upon whom service could be legally made. Upon the argument at the November Term, 1897, of this court it appeared that no testimony had been taken under the rules, and, as the facts were not agreed upon between counsel, the court held that the ex parte affidavits could not be used, and ordered depositions to be taken upon the rules upon notice, within thirty days, and submitted to the court, in order that the court might properly determine whether the actions had been [532] properly, brought in this state in the name of the Adams Express Company, and whether legal service of process had been made in such actions. The depositions as ordered'have-not been taken and submitted to the court. Instead thereof another ex parte affidavit, taken without notice, has been served upon the attorney of the plaintiffs and submitted to the court. The ex parte affidavits used to obtain the rules to show cause cannot be used upon argument without the agreement of parties and the leave of the court. The ex parte affidavit taken afterwards is in the same position. Upon rules to show cause of this character, depositions upon which the argument before and the determination- by the court are to be had, must be taken upon notice under the statute, unless the facts be-agreed upon by the parties and are of such a sufficient character and certainty that the judicial determination of the court can be had upon the questions arising. The rule is absolute that ex parte affidavits cannot be used on the final hearing of the rule. When insisted upon, depositions in the usual manner, upon notice, must be taken. Gen. Stat., p. 2569, §§ 219, 220, 221; Sup. Ct. Rules 62, 63 ; Dare v. Ogden, Coxe 91; Layton v. Cooper, Pen. 65; Cooper v. Galbraith, 4 Zab. 219 ; Baldwin v. Flagg, 14 Vroom 495 ; Atkinson v. Price, 17 Id. 53. The rules to show cause not being properly prosecuted must be discharged, with costs.