Taylor v. Harker , 1 E.D. Smith 391 ( 1852 )

By the Court. Woodruff, J.

This suit appears to have been commenced under the act of 1831, abolishing imprisonment for debt, and to punish fraudulent debtors, as amended by § 1 of chap. 107 of laws of 1842. This act is, by the 47th section thereof, made to apply to the marine and assistant justices’ courts in the city of New York. (See chap. 300 of laws of 1831, section 29 to 47.)

Section 34 of 'the act authorizes an attachment when it satisfactorily appears to the justice, that the defendant is about to remove from the county any of his property, with intent to defraud. In this case there was no evidence whatever laid before the justice of any intent to defraud, except that the defendant, Lydia Harker, had sold her property at auction, and was' about to remove. There was nothing in this to warrant the inference of fraud or fraudulent intent. The attachment was, therefore, as we think, improvidently issued. But without disposing of the appeal upon that ground, it is plain that the court below never acquired a jurisdiction warranting the further proceedings in the action.

Section 36 of the act of 1831, referring to the manner in which attachments issued b j courts of justices of the peace were theretofore directed to be served, provides, in express terms, that if the defendant can be found in the county, a copy of the attachment and inventory, &c., shall be served on the defendant personally. This was not done in the present case. The return of the constable does not show that the defendants could not be found within the county, but only that when he left the copy at their “ last place of residence,” they were absent therefrom. This is not even prima facie evidence that they could not be found. It is wholly unnecessary to look at the affidavits of the defendants, but they nevertheless show clearly that the defendants were in the county, and might have been served.

This alone is fatal to the judgment.

But by section 38, it is further expressly provided, that if the attachment was not personally served, and the defendant does not appear, the plaintiff may take out a summons, and if the summons be returned, either personally served, or that the defendants cannot be found after diligent injury, then the justice shall proceed to hear and determine, &c. In this case no summons was issued, and the court below had no jurisdiction to proceed to hear, &c.

The judgment cannot he sustained upon any ground. It must he reversed with costs.