
    COURT OF APPEALS.
    Denman and others agt. McGuire, impleaded, etc.
    
      Practice — Oreditor’s action — Pram.dv.lent conveyance — Oode of Bmiedial Justice —Section 442 — Affidavit.
    Where an affidavit for an attachment was made April 21, 1877, and the warrant issued May 2d, and final judgment entered August 21st, the Code of Remedial Justice being in effect from May 1 to May 22, 1877, and the affidavit did not conform to the Code of Remedial Justice when presented to the judge, but was in strict conformity to the Code of Procedure, which was in force when the affidavit was drawn, and also when the judgment was entered:
    
      Held that the effect of the statutes was that proceedings taken during said twenty-two days were valid if taken under either Code, so far as concerned an action previous to September 1, 1877.
    It is sufficient to confer jurisdiction to grant an order of publication of summons, where the affidavit shows that efforts were made to serve it, and to ascertain defendant’s place of residence, and that his residence and whereabouts were unknown.
    Where the venue was placed in Sullivan county in the summons, and it was stated in the notice that the summons was issued by the county judge of Sullivan county, and was filed with the complaint, it was sufficient notice that the complaint was filed as required by Code of Remedial Justice, section 442, where it was questioned in a collateral proceeding, although it might be irregular in a direct proceeding.
    
      Decided January, 1886.
    
      Arthur O. Butts, for appellant
    
      T. F. Bush, for respondents.
   Earl, J.

Tbis action was brought by the plaintiffs, judgment creditors of defendant McCann, to set aside a conveyance of land situated in Sullivan county, made on the 15th day of October, 1874, by McCann to his son-in-law, the defendant McGuire, and to have their judgment declared a lien on such land The plaintiffs attached the land and obtained a judgment against McCann, as a non-resident, by the service of summons by publication, and this action is based upon the judgment thus obtained. The affidavit for the attachment was made April 21, 1877, and the undertaking for the same was executed on the same day. The undertaking was approved, and warrant of attachment was issued on the second day of May. The complaint in the action against McCann was verified April 25th, and the summons in that action was dated May 3d. The order for the publication of the summons was granted May 8th, and the judgment was entered August 21st

The Code of Eemedial Justice, which was enacted in 1876, took effect May 1, 1877, and was in force until May 22d, when its operation was suspended until September 1, 1877, and the Code of Procedure was reinstated until that time. Upon the trial of this action the defendant assailed the attachment proceedings and the judgment for various irregularities and defects, and claimed that they were absolutely void for want of jiuisdiction. As the merits of this controversy have been decided against McGuire, and he has been found guilty of co-operating with McCann to defraud his creditors, his technical objections to the proceedings against McCann, to which he was an entire stranger, should not be listened to with favor. In this collateral attack upon them those proceedings should be upheld, unless absolutely void for jurisdictional defects. There seems to have been singular carelessness and inattention in conducting the proceedings, and a court considering a motion made by McCann to set them aside might well hesitate to uphold them. But in this action they should be liberally construed for the purpose of upholding the judgment against McCann and the judgment now appealed from.

We will now notice some of the most material objections separately:

1. The attachment was obtained on the ground that McCann had assigned and disposed of his property and departed from the state with intent to defraud his creditors. It is objected that the affidavit made to procure the attachment did not sufficiently state the facts showing the fraudulent intent. While it is not so full as could be desired, yet we think there was enough to confer jurisdiction to issue the attachment.

2. It is objectéd that the affidavit did not state that the plaintiffs were entitled to recover the amount mentioned therein over and above all counter-claims known to them,” as required by section 636 of the Code of Eemedial Justice. By section 3 of the suspending act (chap. 318 of the Laws of 1877) it was provided that any proceeding taken in conformity to the Code of Remedial Justice, during the twenty-two days of its existence, should not be impaired by the suspension, but that all subsequent proceedings in the action should conform to the Code of Procedure, and that the court should allow, without costs, any amendment or other proceeding necessary for that purpose. The affidavit was in strict conformity with the Code of Procedure, which was in force when it was made, but it did not conform, in the respect specified by the objection, to the Code of Remedial Justice when it was presented to the judge who granted the attachment But while the operation of section 636, above referred to, was suspended, and the prior code was in force, the provisions of that section could not be invoked against an affidavit which conformed to that code. The affidavit conformed to the law in force when the judgment was entered in August, 1877. We think the effect of the statutes is that proceedings taken during the twenty-two days were valid, if taken under either code, at least so far as any action was based upon them prior to September 1, 1877, when the present code took effect.

3. It is objected that the affidavits upon which the order of publication was granted were insufficient to confer jurisdiction, in that they did not show that any effort had been made to serve the summons within this state, or that the plaintiff had used reasonable diligence to ascertain where the defendant would receive matter transmitted through the post-office. We think the affidavits sufficient in these respects. They show that efforts were made to serve the summons upon McCann, and to ascertain his place of residence, and that his residence and whereabouts were unknown. The facts sworn to were sufficient to confer jurisdiction.

4 It is objected that the notice attached to the summons published did not state where the summons was filed, as required by the Code of Remedial Justice (sec. 442). The notice was not in the precise form prescribed by that section, but we must hold that it was in substantial compliance therewith. The summons and notice were attached, and the latter referred to the former. In the summons it was stated that the action was in the supreme court, and triable in Sullivan county, and the notice states that the order was issued by the special county judge of that county, and that the summons was filed with the complaint. As the complaint was required to be filed in the clerk’s office of Sullivan county, we think there was sufficient notice that the summons was filed in the same place. This notice was so far deficient and irregular that it might have been held insufficient in a direct proceeding instituted by McCann to set aside the service of the summons and the subsequent proceedings had thereon; but we think it ought to be held sufficient as against a collateral attack by McGuire, a stranger to ■ that judgment. It was not so defective that the court failed to • acquire jurisdiction to give judgment.

5. Various other objections are made to the attachment proceedings and the mode of obtaining the judgment against McCann, but those objections simply point out irregularities, and do not present or raise any question of jurisdiction.

6. The exception to the charge of the judge, to which our ■ attention is called, points out no error. The language of the judge was a fair commentary upon the case. He did not charge that it was, as a rule of law, incumbent upon the defendant to • procure the evidence of McCann, and he laid down no rule of law in reference thereto. But he distinctly charged that the-burden was upon the plaintiff to establish the fraud which they alleged.

We are, therefore, of opinion that the judgment should be-affirmed, with costs.

Ruger, O. J., Rapadlo and Finch, JJ., concur; Andrews- and Danforth, JJ., dissent; Miller, J., absent.  