Legal Opinion

Rawdon v. Corbin

New York Supreme Court

Decided January 22, 1849PublishedCited by 2 opinions

Before Mr. Justice Hand, at his chambers in Elizabethtown.—E. A. Hubbell moved upon an affidavit, showing the existence of the claim and absence of the Defendant from the state, and that he had real estate in this state, for an order to publish a summons. The affidavit particularly set forth a cause of action, but did not state that a summons had been made out, nor that there had been an effort to serve one, nor did the draft of the order proposed recite this.

1Opinion of the Court

Hand, Justice.

The affidavit is defective. It should show that a summons and complaint have been made out, and that due diligence to serve the same has been used without success. Probably showing that the Defendant is not in the state, would be sufficient, for that shows there can be no service within the state. The affidavit must also show that a cause of action exists, and that the Defendant is a resident of the state, or has property therein. It seems that it is sufficient that Defendant has property in the state and cannot be found within it. The effect of a judg*417ment obtained by service by…

2Cited by2 opinions

  1. Pike v. KennedyOregon Supreme Court · 1887
  2. Titus v. RelyeaNew York Supreme Court · 1859

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