
    Olive E. Waters v. Albert S. Waters.
    (Superior Court of Buffalo—Special Term,
    March, 1894.)
    A judgment will not be disturbed after the lapse of ten years on the ground of insufficiency of the affidavit upon "which an order of service by publication was granted.
    The fact that the summons was published in the Buffalo Daily Transcript while the order directed that it be published in the Daily Transcript does not constitute such a variance as to invalidate the publication, where it appeal's that no other paper of a similar name was-published in the city at that time.
    An affidavit of publication made by the “manager” of a newspaper is sufficient, if he is the person who can give positive proof and there is nothing to cast suspicion on the affidavit.
    If the summons is properly published so that service is complete, the fact that application for judgment was made before the time to answer expired does not affect the j nrisdiction of the court, but is at most an irregularity w'hich will not necessarily render the judgment void.
    Where the last publication is upon the thirty-fifth day, there is no publication in the sixth week, as required by the statute, and the service is defective, and gives the court no jurisdiction of the person of the defendant. A judgment obtained on such defective publication is void, and the defendant is entitled to the protection of the court against the enforcement thereof.
    Motion to sequestrate the property of the defendant and for a receiver.
    
      W. W. Woodworth, for defendant.
    
      Daniel J. Kenefieh, for plaintiff.
   Titus, Ch. J.

This matter is brought before the court by an order to show cause, by the plaintiff, why the property of the defendant should not be sequestered and a receiver of the rents and profits appointed, and by him paid over to the plaintiff and applied in satisfaction of a decree of divorce granted the plaintiff against the defendant, allowing alimony to her.

It appears that the parties, who were husband and wife, were divorced for the adultery of the defendant, and in the decree the defendant was ordered to pay forty-six dollars and forty-six cents costs, and eight dollars a week from the date of the decree for the support and maintenance of the plaintiff and her children of the marriage. The judgment was signed and entered in the office of the clerk of this court on the 30th day of October, 1883. ETo portion of the sum directed to be paid has ever been paid by the defendant, and, at the time'this motion was made, it amounted, with interest, to $5,498.0.6. The defendant is a resident of Chicago, and recently, by the death of his father in this city, inherited enough property to pay the amount now due under the decree.

The defendant opposes the - granting of the order on various grounds; among others, that no valid service of the summons was ever made upon the defendant, and that at the time of the application for judgment the defendant was not in default, even if there had been a good service • of the summons upon him.

The consequences of ■ a decision either way are so serious that I have taken considerable pains to ascertain the law of the case, and have made inquiry outside of the record for some additional facts which would throw light upon the subject, but the lapse of time and the loss or destruction, of the papers in which the summons was published have rendered futile all efforts in that direction.

The question is most important, for the reason that shortly after the divorce was granted to the plaintiff she again married, and is now living with her husband, and has one or more children by him, in the assurance that she was legally and duly divorced from the defendant. Then the sum which the defendant is called upon to pay would practically require all of the property which he has inherited from his father, and, as she has been supported and maintained by her present husband, it seems a hardship to require the defendant now to make full payment.

The decree reserves to the defendant the right to move the court at any time to alter the allowance for alimony, but no application for that purpose has ever been made, and the court is not now asked to modify the decree in that respect. Kamp v. Kamp, 59 N. Y. 223.

It appears that the action was commenced on the 21st day of May, 1883, by delivering the summons to the sheriff with instructions to serve it upon the defendant. The sheriff did not succeed in getting a service, and Mr. Cutting, the plaintiff’s attorney in the action, then tried to find the defendant, and discovered that he had left the city of Buffalo, but the place of his whereabouts he was unable to learn. Thereupon he made application to the county judge of Erie county, who, on the thirteenth day of July, granted an order of publication of the summons in the Buffalo Evening News and the Daily Transcript, and provided in the order that the mailing of the summons and complaint and order to the defendant he dispensed with.

It is claimed by the defendant that the affidavit presented to the county judge of the inability to make a personal service upon the defendant was not sufficient to authorize the order of publication. I am inclined to hold it sufficient. Although it is mostly on information, yet the affiant swears to his own efforts to find the defendant, and, after the lapse of ten years, I do not think the judgment should be disturbed on that ground. Steinle v. Bell, 12 Abb. Pr. (N. S.) 171.

It appears by the affidavits of the “ foreman ” of the Buffalo Evening News that the notice was published for six weeks, the first insertion being on the fourteenth day of July, and the last on the eighteenth day of August, which would give time for six insertions on each seventh day for six weeks. The affidavit of the publication in the Buffalo Daily Transcript was made by the “ manager ” of that publication, and is to the effect that it was published once a week for six weeks, commencing on the fourteenth day of July, and ending on the seventeenth day of August, and that not more than six days intervened between any one publication thereof.

JsTo question is raised that the proof of publication m the Buffalo Evening News is sufficient. But the sufficiency of the affidavit of publication in the Daily Transcript is questioned. It is claimed that the order directed the summons to be published in the Daily Transcript, while it appears to have been published in the Buffalo Daily Transcript. I do not think this such a variation from the terms of the order as to invalidate the publication if it was legal and sufficient in other respects. There was no other paper published in this city at that time bearing a similar name, and the Buffalo Daily-Transcript was undoubtedly the paper intended to be mentioned in the order. Another objection is urged, that the affidavit is made by a person who describes himself as “ manager,” and not “ printer or. publisher, or his foreman or principal clerk.” I do not think this objection is well taken. The object of the statute is that the affidavit shall be made by some person - who knows that the notice was printed, and can give positive proof, and if that person is the “ manager,” when there is nothing to cast suspicion upon the affidavit, the object of the statute is attained, and for that purpose the term “manager” is synonymous with “publisher” or “foreman.”'

I have cited no authorities in support of these holdings, for the‘reason that it does not seem necessary to do so, and as I have not been referred to any, it is probable from the nature of the case that none can be found.

The application for judgment was made at Special Term on the twelfth day of September, and the first day of publication in the Daily Transcript was on the fourteenth day of July. Allowing forty-two days to elapse before the defendant’s time to answer would begin to run, it would not expire until the twenty-seventh day of August, and the defendant would then have twenty days in which to appear and answer. This would allow him until the sixteenth day of September following. The default was entered on the twelfth day of September, so that sixty-two days did not elapse before the order of reference was made. If the notice had been properly published so that service on the defendant was complete, and application for judgment was made before the expiration of the defendant’s time to answer, it would not affect the jurisdiction of the court over the person of the defendant, but would, at most, be an irregularity (Hallett v. Righters, 13 How. Pr. 43), and would not necessarily render the judgment void, and the court will not, after the lapse of so many years, set aside a judgment for an irregularity in the proceedings after the service of the summons. Soulden v. Cook, 4 Wend. 217.

The defendant in this case has known of this judgment for nearly ten years, and at this late day the consequences of such an exercise of power would be too serious to warrant the court in interfering to set it aside on that ground. Orleans Co. Nat. Bank v. Spencer, 19 Hun, 569 ; Decker v. Kitchen, 26 id. 173; Skinner v. Dayton, 5 Johns. Ch. 191.

I have assumed in what has been said that the service was properly made, so as to confer jurisdiction upon the court to authorize the proceedings and render a valid judgment; and the provisions of section 445 of the Code, with reference to allowing the defendant to come in and answer after default, as well as fixing the limit after which no judgment will be set aside, must be understood and considered on the assumption that legal service of the summons has been made as provided by the statute, “that the summons has been served pursuant to an order, made as prescribed in this article,” and the court obtained jurisdiction of the person of the defendant by complete service. Hallett v. Righters, 13 How. Pr. 43.

It is claimed by the defendant that the proof of publication in the Dally Transcript is not sufficient, in that, if the first publication was on the fourteenth day of July and the last on the seventeenth day of August, including both dates, it would be only thirty-five days, and as no publication was made on the thirty-sixth day there was no publication made in the sixth, week at all, and hence there was not a publication “ not less than once a week for six successive weeks,” as required by section 440 of the Code. If no legal service of the summons was made as required by the Code, then the court obtained no jurisdiction, and all proceedings thereafter had are void, and no valid decree could be entered. This presents the most serious question to be determined.

Section 441 of the Code provides: “ For the purpose of reckoning the time within which the defendant must appear or answer, service by publication is complete upon the day of the last publication pursuant to the order.”

Section 137 of the old Code provides: In the cases mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the term prescribed by the order of publication.”

It would seem from the language of this section that the service would not be complete until the end of full six weeks, while under section 441 of the new Code the time would appear to be complete “ upon the day of the last publication pursuant to the order.” In other words, under the old Code the time to answer would commence to run at the expiration of forty-two days, and under the present Code it would appear the time to answer would commence to run at the expiration of thirty-six days, if that was the last day of publication.

This construction was given section 137 of the old Code by the Supreme Court in Richardson v. Bates, 23 How. Pr. 516, where it was held that the service was not complete until the end of forty-two days, and that the defendant’s time to answer did not begin to run until the same was complete, after which he had twenty days in which to answer.

But this question is no longer an open one. The Court of Appeals, in Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397, and after reviewing the authorities under the old Code, came to the conclusion that section 441 had not changed the rule existing at the time of the adoption of the present Code, and that the defendant’s time does not begin to run until the expiration of six full weeks, or forty-two days, after the first publication. The question was directly before the court, and the opinion of Judge Miller was concurred in by all of the judges taking part in the decision of the case.

In this case the first publication was on the fourteenth day of July and the last on the seventeenth day of August, which would allow but thirty-five days, counting the first and last days of publication, so that there could not have been a publication in six different weeks, because, counting the first and last days of publication, there would be but five weeks, of seven days each, and to have a publication on the sixth week the last publication must have been on the thirty-sixth day. If a party, under this provision of the Code, is not required to publish the summons in the sixth week, there is no reason why he should not publish in the fifth or fourth weeks only, so that there are six insertions. This was not the intention of the legislature, as the Court of Appeals has held. The omission to publish once a Aveek for six successive Aveeks is not a mere irregularity. The court gets no jurisdiction over the person of the defendant unless the statute in this respect is conformed to. The proceedings to procure service by publication are jurisdictional facts ; the court can amend any proceeding after the service is complete and jurisdiction obtained, but cannot amend any of the proceedings necessary to confer jurisdiction upon the court. The provision of the statute must be strictly pursued and fully complied with to confer jurisdiction. Hallett v. Righters, 13 How. Pr. 43.

The judgment obtained on defective publication is absolutely void. The judgment roll in this case does not show on its face facts which confer jurisdiction upon the court. It is the absolute right of a party to arrest and stay proceedings upon, and vacate a void judgment upon which active proceedings are in progress to enforce the same, and to deprive him of his property, and compel obedience to its mandates. Kamp v. Kamp, 59 N. Y. 223; Kinnier v. Kinnier, 45 id. 535.

It is not necessary in this case to vacate the judgment. Flo application is made for that purpose; the defendant simply contests the plaintiff’s claim to have the judgment enforced against him for the collection of alimony, and I have no doubt of his right to hrvoke the aid of the court to protect him against its enforcement.

If the position taken is correct, the motion of the plaintiff should be denied, but I think it should be denied without costs.

Motion denied, without costs.  