Carter v. Youngs

The “Act to facilitate the service of process in certain cases” (Laws of 1853, ch. 511), materially enlarges the power of courts and 'judges to dispense with the necessity of personal service; and, without directly amending the Code, in terms, greatly modifies its provisions with respect to the manner in which the service of a summons may be made. Under subdivision 2 of section 135 of the Code, *171service by publication can only be made when it appears by affidavit to the satisfaction of the' court not only that the person upon whom service is to be made cannot, after due diligence, be found within the State, but also, if he be a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent. Satisfactory proof must be furnished, as well of such departure or concealment, and with the intent aforesaid, as of the fact that the person upon whom service is to be made cannot be found.

In Towsley v. McDonald (32 Barb. 604), a judgment rendered upon service by publication was held void for want of jurisdiction, because the affidavits on which the order of publication was made failed to show an intent to defraud creditors or to avoid the service of a summons, although it sufficiently appeared that the defendant was a resident of the State, and could not be found therein, but had either departed therefrom or kept himself concealed. And in that case the court refused to infer an intent to avoid service from the fact of departure or concealment, in the absence of proof that a suit was threatened, expected or feared.

In Van Rensselaer v. Dunbar (4 How. Pr. 151), an order for publication was refused, where the officer who had the summons saw and pursued the defendant, but failed to effect service, by reason of the superior fleetness of defendant’s horse. It was remarked in that case, that if the statute had only required, generally, that the defendant could- not be found within the State, and the sheriff had returned non est inventus, that might have been sufficient; as it is said that a return non est inventus is good, even if the plaintiff know where to find defendant. But inasmuch as the defendant, although not to Yucfound, could not also be said to have concealed himself with intent to avoid the ser*172vice of a summons, it was held that the case was not brought within the statute, and the application was denied.

The act of 1853, authorizing substituted service, is applicable either to cases in which the defendant, if a resident of the State, cannot be found, after proper and diligent effort to effect service upon him, or to cases in which, if found, he avoids or evades such service. The provisions of the act are in the alternative form. They are not coupled conjunctively, as is the case in the Code. If, therefore, it sufficiently appeared by the affidavit upon which the order was made, that the defendant Daniel S. Youngs could not be found, no question being made as to the earnestness and diligence of the effort to find him, the order was properly granted, and the motion to vacate it was properly denied.

I think the word found is used in the statute in its technical sense, as the equivalent of the Latin word inventus, which has long been employed in legal practice. Indeed, the two words are synonymous, as well in them general as in their technical use. “ To find,” says Webster, “coincides in origin with venio, but in sense with invenio.” And the literal signification of invenio is to come upon, to get at. The primary definition of to find, as given by Webster, is to come to, to meet; and hence, to reach, to attain to, to arrive at. It appears by the affidavit upon which the order now in question was made, that the deputy charged with the service of the summons in this suit was quite unable to reach or get at the defendant so as to serve him personally; and such inability afforded sufficient warrant for resorting to the remedy which the statute affords in cases where the defendant cannot be found, even although no attempt may have been made by the defendant to avoid or evade such service. For this reason, I am of opinion that the order for substituted *173service was not irregularly or improvidently granted, notwithstanding it appears on its face to have been made on the ground of an avoidance or evasion of service, and not upon the ground above considered. Every intendment is in favor of the jurisdiction ; and ‘‘ jurisdiction does not depend upon the intention of the officer or tribunal undertaking to act. The question is, Does the law authorize the act?” (Snyder v. Plass, 28 N. Y. 465).

I cannot assent to the proposition that the affidavit shows either an avoidance or evasion of service on the part of Mr. Youngs, since there is no proof whatever that he suspected or believed, or had reason to suppose that a suit was about to be instituted against him, or that process or papers were about to be served. But inasmuch as it appeared that he could not by proper and diligent effort be found, and personal service could not, for that reason be made, I am of opinion that the motion to vacate was properly denied, and that the order appealed from should be affirmed with costs.

Freedman, J., concurred.

The order for the substituted service was made under the provisions of the act of 1853 (Session Laws, 974). This act is remedial in its character, and was probably intended to meet a class bf cases not provided for in subdivision 2 of section 135 of the Code, which designates a mode of service where there is a departure from the State, with intent to defraud creditors, or to avoid the service of a summons, or a concealment within the State with a like intent.

It was evidently the intention of the framers of this provision of the statute of 1853, that no suitor should be deprived of his remedy, or hindered in the service of process against a resident of the State, where he could not “be found, or if found, avoids or evades *174service, so that it cannot be made personally.” The rules of the United States supreme court direct that the process of subpoena issuing against the defendants on the filing of a bill in equity, shall be served by a delivery of a copy to the defendant personally, or by leaving a copy at the dwelling-house or usual place of abode of each defendant, with some person who is a member or resident in the family.

It is the aim of justice to protect both parties, and neither should be deprived their rights, and the courts are open to protect them from hardship either in efforts to serve process or from want of due notice.

In the present case the summons and complaint were served on the defendant Mrs. Youngs, March 27, 1876, who, as it appears by her affidavit, then, and for several months had been well acquainted with her husband’s business affairs, and assisted him in conducting them. When the officer served the papers upon her, she, acting for and on behalf of her husband, refused him permission to see him, or to serve him, and made such statements about his health to the officer, that though her husband could have been found in the house at the time, he did not serve him. Mrs. Youngs was the agent and the custodian of her husband at this period, and as such, and for his welfare and interest, as she deemed it, thus enabled him to avoid personal service. It was simply an avoidance of personal service by the acts of defendant’s agent and custodian, and the case appears to have been one where the defendant, ■ either acting for himself, or through those who ordinarily acted for him, might very properly, in consideration of the condition of his health, decline and thereby avoid being served.

But the statute wisely provides that in such a con-' tingency as this, there may be another mode of service by which the rights of all parties can be protected ; for it must be observed that there are occasions for the *175commencement of suits where persons are made defendants whose interests would suffer detriment, unless there was some mode of bringing them within the remedial protection of the court, by other ways than by personal service.

It was not the intention of the legislature, that where physical disability interferes with and renders personal service dangerous to a defendant, and it is for that reason avoided by or on behalf of such defendant, that a suitor should be left remediless either to protect himself, or the party sought to be served.

The affidavit of the appellant Daniel S. Youngs, made four weeks after the substituted service, states that he was told by his wife, that this suit had been commenced, though he does not state when he was so told, and the clear and elaborate narration contained in it confirms his allegation as to his convalescence. It is apparent from the record that comes before the court on the defendant’s appeals, that his interests are duly watched and protected, and there is no reason to believe that he has been otherwise than benefited by the order for a substituted service, under which he seems to have diligently proceeded in the litigation.

The order appealed from is not at variance with the views expressed in Simpson v. Burch (4 Hun. 315) and Collins v. Ryan (32 Barb. 647).

It should be affirmed without costs to either party.