
    Waffle vs. Goble.
    The statute {Code, § 135) provides what kind of proof shall be made to the satisfaction of the court or officer granting an order for publication, that a party cannot, after due diligence, be found within the state. That fact must appear by affidavit. The return of a shereff will not answer; that not being the kind of evidence which the statute requires.
    Nor can the essential fact be made to appear partly by affidavit and partly by a return. It must be made to appear by affidavit only.
    The affidavit may be made by a plaintiff in the action.
    The statute does not prescribe who shall make the affidavit, but it must show to the satisfaction of the court or judge that due diligence has been used, and that the person to be served cannot be found within the state.
    The filing of the complaint is not necessary, where the summons and complaint are served personally upon the defendant, soon after the order for publication is granted, and where no publication is made.
    When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the post-office.
    Where the plaintiff failed to comply with the statutory conditions on which the action was deemed to be commenced, by the issuing of the summons; Held, that it must be deemed not to have been commenced until the service of the summons and complaint, under the judge’s order; that up to that time no action had been commenced, and none was depending; and that an attachment previously issued and levied upon the defendant’s property had nothing to support it, but was wholly void, and should be set aside.
    The order for publication, in such a case, however, if regularly granted, may be allowed to stand, without any reference to the attachment.
    APPEAL by the defendant from' an order denying a motion to set aside an attachment and order for publication.
    The defendant was a non-resident of this state, and a resident of Michigan. The summons, and a warrant of attachment against the property of the defendant, were placed in the hands of the sheriff of Monroe county, on the 8th of October, 1866, and on the same day the sheriff, by virtue of such warrant, seized the defendant’s property. On the 2d of January, 1867, the sheriff indorsed upon the summons that after due and diligent inquiry by him made, he could not find the defendant within his bailiwick, to make service of process upon Mm. On the following day, the plaintiff presented his own affidavit to the county judge of Monroe county, in which he set forth, among other things, that the defendant was Ms son-in-law, having married his daughter, and that in the fall of the year 1864 he left his residence in this state, and removed to Van Burén county in the state of Michigan, where he has since resided, with his family; that the summons issued in the action could not he served by reason of the defendant’s residence out of, and his absence from, this state; that the deponent had searched for the defendant and endeavored to find him within the state, at the time of commencing the action; and that by search and inquiry he had been unable to find him, and did not believe he had been within this state since the fall of 1864; and that he would be likely to know, from the fact of the defendant being his son-in-law, and he having seen letters from him, the defendant. TJpon this affidavit being presented to the county judge, together with the sheriff’s return upon the summons, that officer, on the. day last mentioned, made an order for the service of the summons by publication, in which it is recited as follows: “ It appearing to my satisfaction, by the affidavit of the plaintiff, that a cause of action exists,” &c., and “ that the defendant cannot after due diligence be found within this state,” &c., “ I do .order,” &c. After the granting of the order, and on the 8th of January, 1867, a copy of the summons and complaint were served personally on the defendant, at his residence in the state of Michigan. Uo complaint had been filed in the clerk’s office.
    The motion to .set aside the attachment and order was made on three grounds: 1. That the affidavit on which such order was granted did not show that effort was made to serve the summons-; nor that the defendant could not be found; nor that any search had been made for him; nor that he was not in the state when the summons was issued. 2. That no complaint had been filed, in the action. 3. That the order .for publication of the summons was not obtained, and the publication thereof commenced, within the time prescribed by statute.
    The motion was denied.
    
      Geo. F. Danforth, for the appellant.
    
      M. S. Newton,' for the respondent.
   By the Court, Johnson, J.

It is claimed by the appellant’s counsel, that the judge who granted the order of publication had no right to receive or take into consideration the sheriff’s certificate that he could not find the defendant in his county, to make service of the summons upon him. It is also claimed that proof by affidavit, that the defendant to be served “ cannot after due diligence.be found within the state,” must be made by the officer, or other person who has possession of the summons, for the purpose of making service. And that the affidavit of the plaintiff' who could not serve the summons, was not competent proof before the officer, to satisfy him that the defendant could not be found within the state. The statute provides' what kind of proof shall be made to the satisfaction of the court or officer granting the order of publication, that a party cannot, after due diligence, be found within the state. That fact must appear by affidavit. ■ (Code, § 135.)

The return of a sheriff will not answer; that not being the kind of evidence which the statute requires. Uor could the essential fact be made to appear partly by affidavit and partly by a return. It must be made to appear by affidavit only. But although the return appears to have been presented with the plaintiff’s affidavit, there is nothing to show that the judge who granted the order received or acted upon the return as evidence. On the contrary, the -order recites that the fact appeared to his, the judge’s, satisfaction by the affidavit of the plaintiff.

If the affidavit was competent as evidence, the presence of the return at the same time did not destroy or weaken its force. As to the competency of an affidavit by a plaintiff" in the action for such a purpose, it was held to be competent and sufficient in Van Wyck v. Hardy, (20 How. Pr. 222.) That was a general term decision, which it is our practice generally to follow. The statute does not prescribe who shall make the affidavit, but it must "show that due diligence has been used, and that the person to be served cannot be found within the state, to the satisfaction of the court or judge. In the present case it will be seen from the facts stated in the affidavit, in respect to the inquiries made, and the grounds of belief and knowledge, that it furnishes far more satisfactory evidence of the defendant’s continual absence from the' state, than any proof of search by a sheriff or other officer, who was a stranger to him, could furnish.

As to filing the complaint in a case like this, I am of the opinion it is not necessary. Here the summons and complaint were served personally upon the defendant, within a short time after the order of publication was granted. The Code (§ 135) provides that when publication is ordered, 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 complaint, by the same section, is to be “ first filed,” “ in all cases where publication is made.” And in that case “the summons, as published, must state the time and place of such filing.” Here no publication was made, but the summons and complaint were served personally. The defendant having a copy of the complaint, there was no necessity of having it filed, where he could obtain a copy, or of a notice of the time and place of such filing, and the statute does not require it in such a case.

But the third ground of the defendant’s motion presents a question of more difficulty. The summons, as has been seen, was issued and the attachment levied on the 8th of October, 1866. The service of the summons and complaint upon the defendant in the state of Michigan, which is made the equivalent for publication, after the order for a service of the summons in that manner had been obtained, was not made until the 8th of January, 1867, more than ninety days after the summons was issued. The order for the service by publication was not obtained until the 3d of January, 1867, nearly ninety days after the issuing of the summons, and publication was never commenced. At the session of the legislature in 1866, section 227 of the Code, which gives the provisional remedy of attachment, was amended by adding to it as follows: “And for the purposes of' this section, an action shall be deemed commenced when the summons is issued, provided, however, that personal service of such summons shall be made, or publication thereof commenced, within thirty days.” Previous to this amendment, it had been held by the Court of Appeals, in Kerr v. Mount, (28 N. Y. Rep. 659,) that an attachment could only be issued where an action was depending; and that an attachment issued where a summons had been issued, merely, and not served, was void, the issuing of a summons not being the commencement of an action for general purposes. By referring to the section, it will be seen that this provisional remedy is given only “ in an action arising on contract,” &c. It must have the foundation of an existing depending action to stand upon, or it is a nullity. Of course, there is no action in existence until one has been commenced according to law. This amendment to section 227 was doubtless made to remedy a defect disclosed by the decision above referred to, and to render the provisional remedy, by attachment, more efficacious than it would be if the party were compelled to wait until the action was commenced by tKe actual service of a summons, before be could have his warrant of attachment. Hence it was provided by the amendment, that for the purposes of that section, (§ 227,) in order to uphold and give effect to the warrant of attachment, the action should be deemed to be commenced when the summons was issued, on certain conditions. Since the amendment, therefore, a warrant of attachment properly granted and served immediately after summons issued,'and before service thereof, is “in an action,” and is valid and effectual, provided always, that the conditions on which the’issuing of the summons is deemed the commencement of the action are subsequently complied with. In the present case the condition was not complied with, by personal service of the summons or the commencement of the publication thereof in thirty days. The question then arises, whether, after the expiration of the thirty days, and b'etween that time and the service of the summons and complaint under the order, this action was legally depending, so as to afford a support to the warrant of attachment.

This depends upon the effect of the proviso in the amendment. A proviso in a statute always implies a condition, unless modified by subsequent words. The difference between an exception and a proviso in a statute is that the first exempts absolutely from the operation of the enactment, whereas the latter only defeats the operation of the enactment conditionally. (Bouv. Law Dict. tit. Proviso,” and cases'there cited.) A proviso is something engrafted on a preceding enactment, by way of limitation or otherwise, and is held to operate as a repeal of the ■purview of the act where it is inconsistent with it, as expressing the last intention of the lawgiver. (Smith’s Commentaries on Statute and Constitutional Law, 712.) The effect of the amendment most clearly is, that in the particular case in which a' warrant of attachment is properly issued, at the time of issuing the summons, or at any time afterwards, within thirty days, the action is deemed to be commenced and depending provisionally or conditionally only. If within the thirty days, however, the proviso or condition is not complied with,' the action is no longer deemed to be commenced by the issuing of the summons, and the action is no longer depending. The warrant of attachment, consequently, being no longer “ in an action” •depending, has nothing to stand upon, and must necessarily fall. The subsequent steps within the thirty days are clearly jurisdictional matters, and must be taken in order to continue the pendency ’of the action, which is before then provisional only. This proviso is, in its character, quite like that attached to section 99. By that section, it is provided that the attempt to commence an action by the delivery of a summons to the sheriff or other officer of the county, with the intent that it shall be actually served, shall be deemed equivalent to the commencement thereof. But it also provides that such attempt must be followed by the first publication of the summons, or the service thereof, within sixty days. This has been uniformly held not to apply to the commencement of actions generally, but to actions in particular cases only. Supposing, in an action under that section, to save the statute of limitations, no subsequent steps should be taken after the issuing of the summons, would any one pretend that an action had been commenced for any purpose ? I think not. By the proviso in the amendment, in question, the legislature doubtless intended that a plaintiff should lose all benefit and advantage which might accrue from such a provisional remedy, unless he continued diligently and perfected the commencement of the action by the service of the summons in one of the ways provided for. It was not designed to give a plaintiff the privilege of seizing the defendant’s property in advance, and holding it till it should suit his pleasure or convenience to proceed in his action. If the plaintiff, under this section, could hold the property ninety days before taking the subsequent steps, I do not see why he might not continue to hold it in the same way for years.

The plaintiff's counsel refers to section 139 of the Code, which provides that, from the time of the service of -the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction and-to have control of all the subsequent proceedings. I do not see that this section has any particular bearing upon the real question involved in this case. The court undoubtedly acquired jurisdiction in the case by the allowance of the provisional 'order or warrant, after the suit was provisionally commenced by the issuing of the summons. But whether it retained such jurisdiction after the lapse of thirty days, when the action could no longer be deemed to have been commenced, is quite another question. It is obvious that in such a case the jurisdiction of the court must be provisional or conditional, as was the commencement of the action, and ceases the moment the law ceases to regard the action as having been commenced and to be depending. My conclusion, therefore, is, that the plaintiff having failed to comply with the statutory conditions on which the action was deemed to be commenced by the issuing of the summons, it must be deemed not to have been commenced until the service of the summons and complaint, under the judge’s order, on the 8th of January, 1867. Up to that time no action had been commenced and none was depending, and the warrant of attachment had nothing to support it, but was wholly void, and should have been set aside.

The defendant asked also, by his motion, to have the order of publication set aside; but I do not see why that was not regularly granted, under the general provision for the service of a summons upon a non-resident defendant, without any reference to the attachment. So far as that is concerned, the order appealed from is correct.

[Monroe General Term,

June 1, 1868.

The order, therefore, so far as it refuses to set aside the warrant of attachment, should he reversed, and an order setting aside the attachment granted, and in other respects affirmed. hTo costs of the appeal allowed to either party.

E. JO. Smith, Johnson and J. 0. Smith, Justices.]  