More v. Thayer
New York Supreme Court
This was an appeal from an order made af a special term, vacating and setting aside an order of revival against the personal representative of a deceased defendant, (Duncan McEwing,) and all subsequent proceedings, for irregularity.
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This was an appeal from an order made af a special term, vacating and setting aside an order of revival against the personal representative of a deceased defendant, (Duncan McEwing,) and all subsequent proceedings, for irregularity. The defendant Duncan McEwing having died after the issuing of an attachment, and after a partial publication service of the summons, an order of revival against his personal representative was obtained, and further proceedings were taken, when the present defendant moved to set aside the order, &e.
1Opinion of the Court
By the Court, Edwards, J.
The ground upon which this motion was decided at the special term was, that the summons had not been served at the time of the decease of the defendant Duncan McEwing, jun. We concur in the opinion which.was expressed upon the decision of the motion, that, as a general rule, a suit is not commenced, where the service of the summons is by publication, until the expiration of the time for publication prescribed by the code. But in addition to the provision contained in section 127 of the code, as to the commencement of civil actions, it is also provided in section 139,…
2Cited by13 opinions
- Great West Min. Co. v. Woodmas of Alston Min. Co.Supreme Court of Colorado · 1888
- Schram v. KeaneNew York Court of Appeals · 1938
- Hawley v. IsaacsonWashington Supreme Court · 1921
- Mitchell v. SchoonoverOregon Supreme Court · 1888
- Thacher v. BancroftNew York Supreme Court · 1862
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