Abrahams a. Mitchell.

This was an action commenced for the foreclosure of a mortgage on property situated in the city and county of New York. The defendants, Louis Mitchell and Joanna Caroline Mitchell, are non-residents of the State of New York, and residents of the State of New Jersey. On the 26th of June, 1858, an order under section 135 of the Code was obtained from one of the justices of the Supreme Court, authorizing the service of the summons and complaint on defendants Mitchells by publication, and deposit in the post-office: the summons and complaint were alleged to be personally served on defendants Mitchells on the 1st day of July, 1858: the summons was not published, nor a copy of the summons and complaint deposited in the postoffice. On the 30th day of September an order of reference was obtained on default of an answer or appearance on the part of defendants Mitchells. Judgment was entered up, and the property advertised and sold.

The defendant Joanna C. Mitchell now moved to set the judgment of foreclosure and sale aside, on the ground that the personal service of a summons and complaint in another State is irregular and of no effect, even after an order of publication had been obtained; and also that the summons was not actually personally served, and on the ground that the property brought an inadequate price; but the chief point raised was as to the right to serve a summons out of the State, without publishing the summons after an order to that effect has been obtained.

James M. Smith, Jr., for motion.

Beebe, Dean & Donohue, opposed.

INGRAHAM, J.-The defendant Mitchell was a non-resident, and proceedings were commenced against her as such to foreclose a mortgage. After the order of publication was obtained, the summons and complaint were alleged to have been served personally on the 1st of July, 1858, in New Jersey:

The publication and deposit of a letter in the post-office was omitted, and judgment was entered in October, 1858: the order of reference was made on 30th September, 1858:

The question is submitted on this motion, whether the publication of the commencement of the action and the deposit of notice in the post-office is rendered unnecessary by the personal ser

Abrahams a. Mitchell.

vice of the summons and complaint on the defendant out of the State.

The words of the statute are, "personal service of a copy of the summons and complaint out of the State is equivalent to publication and deposit in the post-office." The natural and ordinary understanding of this provision is, that personal service out of the State takes the place of publication and deposit in the post-office: the object of the publication, as well as of the notice by mail, is to inform the defendant that the action has been commenced.

This becomes unnecessary, if the defendant obtains the notice in any other way. By personal service out of the State of the summons and complaint, it cannot be doubted that the defendant is more certainly informed of the commencement of the action, than she would have been by a publication in the paper which she might never see, or by a letter in the post-office which she might never receive.

The case of Litchfield a. Burwell (5 How. Pr. R., 346) holds that personal service out of the State merely dispenses with the service by mail, and that the order for publication and actual publication is still necessary.

In Tomlinson a. Van Vechten (1 Code R., N. S., 317), the contrary was held, and it was there decided that personal service out of the State was equivalent to the publication of the summons, and deposit of the summons and complaint in the post-office.

The latter seems to me to be in accordance with the statute. Where the defendant is out of the State, no jurisdiction over him can be obtained except by virtue of the provisions. The statute, therefore, must be strictly followed. This provides that when the debtor resides out of the State, the service may be made by publication. (Code, § 135.) This service is not complete until the time of publication as directed by the order has expired. From that time the defendant has 20 days to appear and answer, and after the 20 days have expired, the plaintiff may take judgment.

The statute there provides an equivalent for the publication and deposit in the post-office; but the rest of the proceeding must be under this section. The plaintiff may publish and deposit the copy, summons, &c., in the post-office, or he may

Abrahams a. Mitchell.

adopt the equivalent for the publication and deposit by a personal service of the summons and complaint out of the State; but in either case this only completes the service of the process; and by section 137 in both cases, whether of publication or service out of the State, the service is to be deemed complete only at the expiration of the time prescribed by the order of publication.

The time to answer.only commences when the service is complete, and it follows therefore necessarily that in both cases the time for appearance and for answering does not expire until 20 days after the service is perfected.

As to the service in New Jersey, the affidavits are of a conflicting character. The referee to whom the case was referred, has found that the papers were served on the 1st of July. I am inclined to concur with him in that conclusion, because the weight of the evidence from disinterested persons is against the defendant. She might have shown by persons who saw her in New York on that day, that she was not in New Jersey, if such were the case, and her son's affidavit admits that the papers were delivered to her on her return from New York the same day.

I feel constrained to deny this motion, because neither of the grounds on which it is made is tenable.

In doing so, however, I am not disposed to conclude the defendant, if on further examination, she can establish her absence from New Jersey on the day the summons was alleged to be served.

The circumstances detailed by her disclose a hard case, but one from which it is difficult to relieve the defendant on account of her own laches.

Had the motion been made at once, she might have been relieved, but after waiting till the property has been sold, and has passed by conveyance to third parties, it seems to be very late to apply for relief.

The motion is denied, with $10 costs, without prejudice to a renewal of the motion on the ground of want of service of process, if so advised.

Logan a. Brooks.

LOGAN a. BROOKS.

Supreme Court, Fourth District; Special Term, January, 1859. COSTS.-WITNESS-FEES.

A party examined in his own behalf is entitled, on prevailing in the action, to tax witness-fees for his attendance, upon proof of the materiality and necessity of his attendance as a witness.

Question of costs submitted upon stipulation.

Upon the adjustment of costs in this action, the clerk allowed the defendants (under plaintiffs' objection) the sum of $35.90 for the fees and attendance of the defendant Kimmel, as a witness in behalf of the defendants.

One of the plaintiffs was examined on the trial. The parties had mutually stipulated that plaintiffs and defendants might be examined on their own behalf respectively.

The defendant Kimmel made affidavit that he would not have attended but for this stipulation, and did so to answer the plaintiffs' testimony, but he did not bring his attorney from New York with him, but employed counsel at the Montgomery circuit to try his cause, and was not subpoenaed.

The question whether the defendant was entitled to such fees for attendance as a witness in his own behalf, was now submitted to the court by consent.

A. Sacia, for the plaintiff.

James L. Phelps, Jr., for the defendant.

ROSEKRANS, J.-The defendant was a witness for himself. The statute allows a party who is successful in the suit the fees of his witnesses. The letter of the statute justifies the allowance, and I can see nothing on its part to exclude it. This construction may lead to abuses, as did the early practice under the statute before parties could be sworn in their own behalf. This

The People on rel. The Tremont Bank a. Connolly.

was corrected by requiring an affidavit of the materiality and necessity of witness, and under that rule, when the affidavit was made, and it was apparent that a greater number were subpœnaed than was necessary, for the purpose of enhancing the costs, the court and its taxing officers disallowed the charges for such witnesses. The reasoning of Lord Campbell in Howes a. Barber (10 Eng. L. & Eq. R., 467), and the rule he established, seem to me to be correct. Under it, all abuse may be prevented. If a party can be sworn as to the cause of the action or defence, I think he is equally entitled to credit when he makes an affidavit as to his attendance as a witness. The defendant brought himself within the rule of Howes a. Barber, and had the defendants in Logan a. Thomas (11 How. Pr. R., 160) presented to the taxing officer the affidavits read on the appeal from the taxation, I think Mr. Justice Brown would have adopted the same rule.. The question is one which should be definitely settled by general rule of the court, or at general term; and for that purpose I shall hold that the adjustment by the clerk is correct. There is a clear distinction between the cases arising under the Code, and that in 6 Paige R., 170. I have have not access to 3 Abbotts' Pr. R.

The motion for readjustment is denied.

THE PEOPLE on rel. THE TREMONT BANK a.
CONNOLLY.

Supreme Court, First District; At Chambers, August, 1858.

ATTACHMENT.-NOTICE OF PENDENCY OF ACTION.

Section 132 of the Code as amended in 1858 (Laws of 1858, 491, ch. 306, § 4), providing that a notice of the pendency of an action affecting the title to real property, or an action in which an attachment affecting real property has been issued, shall be constructive notice to purchasers or incumbrancers; and that every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and bound by subsequent proceedings as if a party to the action-does not authorize the filing of a notice against prior purchasers or incumbrancers who are not parties to the action.