¶1—I concur in the result of the opinion of Justice Bonney in this case, and in his views upon the point upon which the new trial is granted. The jurisdiction of the court to make the order of publication depends upon the evidence, in point of fact, of one of the five different cases or contingencies on which alone publication can be ordered. The existence of these it is not for the judge granting the order to determine, upon an ex-parte application, in such a way as to bar or exclude the defendant. He has had no opportunity to be heard on this question, and section 135 makes the jurisdiction to depend, not upon the judge who grants the order being satisfied of the fact, but upon the existence of the fact itself. I incline to think the affidavit produced to the officer who makes the order, if incorporated in the judgment-roll, or the recital of the fact in the judgment-roll itself, is sufficient prima-facie evidence of the fact, but it is a jurisdictional fact, and is open to contestation, unless the party has had an opportunity to controvert it. When that has been done, it becomes thereby an established fact, and is *16not open to examination afterwards, except upon a direct review of the proceeding. Suppose the affidavit on which the order was granted stated that the defendant was a foreign corporation, or that the defendant was a non-resident, or that the subject of the action was real or personal property in this State, or that the action was for divorce, when from the papers themselVes, or from extrinsic evidence, it was made clear that the fact was in each instance the reverse of this,—can it be doubted that the party aggrieved would have a right to set aside the proceedings, or dispute their validity, whenever the opportunity should be presented, unless the fact had been before decided against him upon a hearing of the parties ? I think there can be no doubt of his right to do so, and that the rights of absent and non-resident defendants should, to this extent at least, be guarded from what may be a very oppressive proceeding.
33 Barb. 71
12 Abb.Pr. 8
Fiske v. Anderson
Decided November 15, 1860
New York Supreme Court · decided 1860-11-15
This complaint stated, that in March, 1860, James McBride and others recovered judgment in this court against the defendants for the sum of $947.89, which judgment was duly assigned to the plaintiff and remained unpaid; and demanded judgment for the sum, with interest and costs.
Good law ✅— No negative treatment on recordhow we know
Decided 1860-11-15
How this case has been cited
Cited by 7 later decisions — most recently May 1911
7 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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