Hicks v. Crawford Coal & Iron Co.

SANFORD, District Judge. The complainant’s motion for order of publication as to the nonresident defendants must he denied. Section 8 of the judiciary act of March 3, 1875, provides that when in any suit commenced in any Circuit Court of the United States to enforce any legal or equitable lien upon, or claim to, real property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer or demur by a day certain to he designated, which order shall he served on such absent defendant, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or, where such personal service upon such absent defendant is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. It is clear that under this statute an order of publication is not authorized except where personal service of the order requiring the absent defendant to appear and plead is not practicable. In the present case it merely appears from the marshal’s return that these defendants are not to be found within this district, but from anything that appears to the contrary, if the complainant shall make proper application for an order directing them to appear and plead by a day certain, it might be entirely practicable to serve such order upon them at their places of residence in other districts. See Batt v. Proctor (C. C.) 45 Fed. 515, and In re Burka (D. C.) 107 Fed. 674. In the first-named case it is said that in order to warrant an order of publication the applicant shall distinctly state the known places of residence of the nonresident defendant, or show the diligence used to ascertain the places of residence when unknown, in order that the court may have before it the data to direct personal service in the one case and publication of the order in the other, and there is quoted with approval the language of Judge Dillon in Bronson v. Keokuk, 2 Dill. 498, Fed. Cas. No. 1,928, to the effect that the practice under the act “should he such as to secure personal service [336] in 3JI .Cases when the residence of the absent defendant is known, or can be ascertained; and to substitute or resort to constructive service by publication only where the better mode is not practicable within a reasonable time, and by the exercise of reasonable diligence.” An order will accordingly be entered denying the present .motion for order of publication, with costs.