
    George Warner, Pl’ff, v. Arsino B. Warner et al., Def’ts.
    
      (Supreme Court, Monroe Special Term,
    
    
      Filed December, 1893.)
    
    Former Adjudication—Pendency of Another Action.
    Where a defendant in an action for partition has not been served, its pendency is no ground for the abatement of a subsequent action brought for the same purpose by such defendant.
    Plea in abatement in an action for partition that another action is pending between the parties for the same cause.
    
      T. D. Wilkin, for pl’ff; Arthur & Sutherland, for defts.
   Rumsey, J.

This action was begun on the 3d day of July, 1893, by the service of summons, and the usual other proceedings by which an action of this nature is commenced. Its object was for the partition of certain property situated in the county of Monroe. No other defendant except Arsino B. Warner appears; and he answers, admitting all the facts alleged in the complaint, and setting up as a defense only that another action is pending for the same cause between the same parties. The single question presented is whether that defense can stand upon the facts.

The undisputed facts are that on the 31st day of March, 1893, Arsino B. Warner caused to be filed in the clerk’s office of Monroe county, summons, complaint, and notice of the pendency of action for the partition of the same property which is sought to be partitioned in this suit. The parties to that action are the same as in this action, except that the plaintiff in that action is Arsino B. Warner, and George Warner is a defendant. On the day on which the notice of pendency was filed, summons was served upon one of the defendants, and shortly thereafter summons was served upon other defendants. George Warner was not served, nor did he know that any defendant had been served with summons, but he did know that complaint and notice of pendency was filed. On the 3rd day of July, 1893, that being the condition of Arsino Warner’s action, George Warner caused this action to be begun, and summons to be served upon the proper parties. Thereupon, and after summons in George Warner’s action had been served upon him, Arsino Warner completed the service of the summons in his action by serving these defendants whom he had not served before, including George Warner; and then he answers, setting up the defense that another action is pending for the same cause between the same parties. There is no doubt that, if his action was pending at the time when this action was begun, it is a complete answer to the plaintiff’s suit. The only question presented, then, is whether, as against George Warner, Arsino B. Warner’s action had been begun on the 3d day of July, when summons in this action was served upon Arsino Warner.

In ordinary cases, it is a proposition not be be disputed, that under the Code the mere issuing of summons is not the commencement of an action, for ordinary purposes. Kerr v. Mount, 28 N. Y. 659. It is quite true that for certain purposes the court is deemed to have acquired jurisdiction by the granting of a provisional remedy. Code Civil Proc. § 416. But that jurisdiction is conditional, and it is liable to be lost unless it is followed by the actual service of a summons. The section of the Code above cited provides expressly that a civil action is commenced by the service of a summons. It necessarily follows, from that, that unless the summons has been served the action is not commenced, as to any given defendant, and so the courts have held. Haynes v. Onderdonk, 5 Thomp. & C. 176; Boylston v. Wheeler, Id. 179. Indeed, although it was provided in the Code of Procedure (section 139) that the courts should be deemed to-have acquired jurisdiction “from the time of the service of the summons in a civil action, or the allowance of a provisional remedy,” still it was then held that the action was commenced for the purpose of acquiring jurisdiction over the defendant only by the service of summons, and that until summons was served the court had no jurisdiction to enter judgment against a defendant, although a provisional remedy had been allowed against him. Ex parte Griswold, 13 Barb. 412. So, under the Code of Procedure, for several years, there was no provision as to when the notice of pendency should become operative, and it had been held that it. only became operative, as to any defendant, after the service of summons upon him. In applying that rule, it was-held, that after the filing of lis pendens and complaint, but before service of summons upon him, a person named ás defendant in a foreclosure action, having deeded away his interest by recorded deed, and being afterwards served with summons, his grantees were not bound, because the court had not acquired jurisdiction over him for any purpose until the service of summons upon him. Trust Co. v. Dickson, 9 Abb. 61. The rule was laid down by Judge Ingraham, in that case, that, until summons was served upon each defendant, jurisdiction, as to him, was not acquired. Certainly, an action cannot be commenced, as to any man, until such jurisdiction has been acquired that, without doing anything more, a judgment can be entered against him, either personally, or such a judgment as would bind his interest in the property which is the subject of the action. So long as neither of these things can be accomplished, the party cannot be said to be in court, and the action has not been commenced against him. ' It is claimed in this case that the action was begun in such a way as to give the court jurisdiction by the filing of the notice of pendency of action and the complaint and service of summons upon one of the defendants. That is undoubtedly true as to all those persons1 who were served with summons, but until summons was served upon George Warner the court, certainly had no jurisdiction over him. There was nothing to prevent the plaintiff in that action from procuring an amendment of the summons and the other proceedings, and striking out his name as a party, if he had seen fit to do so; and if judgment happened to be entered without any further proceedings in the matter, while it would have been good as against every party served, it would have had no effect upon George Warner’s interests. As to him, certainly, until summons was served upon him, the action was a complete nullity. It was so held in the case of Haynes v. Onderdonk, 5 Thomp. & C. 176. In that case the court held that the filing of a copy of the summons and complaint, with a notice 'of pendency of action, was not a commencement of the suit, for any other purpose than that of affording constructive notice to subsequent purchasers from the defendants.

For the purpose of preventing the running of the statute of limitations, the Code provides that the delivery of the summons to the sheriff, with the intention that it shall be actually served, is equivalent to the commencement of the action. Code Civil Proc. § 399. But it is to be noticed that such delivery is not called a commencement of the action, but it is called, in that section of the Code, “ an attempt to commence an action,” and that section is to be limited to the statute of limitations, and not to be further extended. Trust Co. v. Dickson, 9 Abb. 61, 64. No way is provided in the Code by which any person can be brought into court in any action until summons has been served upon him, either personally or by some mode of substituted service. Nothing of this kind was ever attempted to be done by Arsino Warner, as far as George was concerned. As to him, the action simply stood, and he was in the situation of having his right to transfer his property tied up for sixty days from the 31st of March, by the filing of the notice of pendency without being able, in any way, to have any steps taken to prevent it. No action can be said to be pending against a man, when he has not been served with process, or in any way brought into the case, or put in such a situation that he can take any action to defend his rights therein. While he knew that the notice of pendency and complaint was filed, he did not know that any defendant had been served with summons; and he had no reason to suppose, after the sixty days had expired, that any step was taken by Arsino Warner to continue the action which he had sought to begin. I do not regard this as very material to the decision of this case; because the knowledge of George Warner is not important, in my judgment, in deciding this question. But whether it be important or not, if it should be held that the mere filing of the complaint and lis pendens, with the service upon one defendant, was sufficient to give the court jurisdiction as to every other defendant, and to make the action pending as to him, whether he were served or not, it would not be difficult for any party who desired to prevent the partition of lands to postpone it indefinitely. The intent of the law clearly, is that, when one has commence and action for partition of real property, he shall complete his service with all possible speed. He is permitted sixty days within which to do it, during which the lien acquired by the filing of his notice is kept effective by the law. The purpose of that, as is apparent, is to enable him to make the necessary inquiries as to the residence of the defendants, and to complete service by publication in such eases as it shall be necessary; and the keeping go.od of the lien during that time implies the intent on the part of the lawmakers that the service should be completed by the time it expires. Various inconveniences are suggested by the counsel for the defendant as likely to arise, if it were held that the action was not made pending by the filing of the notice of pendency. All these are more specious than real. If each tenant in common should commence an action, the court would have no difficulty, upon motion, in consolidating the actions, or in making such direction as would assure an orderly procedure in them. But the argument ab inconvenienti is not of very much force' in these cases. The question must always turn upon the construction of § 416 of the Code of Civil Procedure that the action was not commenced, as to any defendant, until service of summons has been made upon him. The result is that, so far as George Warner was concerned, there was no action pending at the time the summons was served upon him in this case. The remedy of Arsino Warner was, I think, either to appear in this action, and seek to enforce his rights here, or to move that the two actions might be consolidated, which I have no doubt the court would have the power to do, in such a case as this.

Upon the question raised here, the judgment of the court must be for the plaintiff; but as, outside the issue of another action pending, there has practically been a default on the part of Arsino Warner, as well as the other defendants, the usual order of reference should be made, that the court, upon the coming in of the report of the referee, may order such a judgment as is proper. Judgment accordingly.  