BRANDON MANUFACTURING COMPANY v. PETTINGILL

BRANDON MANUFACTURING COMPANY v. PETTINGILL. Supreme Court, First Department; Special Term and Chambers, June, 1877. Examination before Trial.—Service of Summons. An order for the examination of a party before trial, made and served before the action has been commenced by the service of summons, is without jurisdiction, and cannot be enforced even after subsequent service of summons. Plaintiffs. brought this action against Samuel M. Pettingill and Herbert L. Bridgman, and others designated by fictitious names because their true names were alleged to be unknown. On May 31 he obtained an order requiring the two defendants named to appear and be examined as parties before trial, under section 391 of the Code, and the order, with the accompanying affidavit and a,summons to appear and be examined accordingly, was served on each of them, returnable on June 6. On .the return day the examination was adjourned without prejudice, and subsequently, and before a hearing was had, summons for the commencement of the action was first served on each of the defendants named. Charles D. Adams, for defendant Bridgman, Moved to vacate the proceedings on the ground that the court had no jurisdiction. Austin Abbott, for the defendant Pettingill. Mr. Whiting, for plaintiff, Cited section 139 of the Code,—which provides that the granting of a provisional remedy gives jurisdiction. This provision is embodied in the new Code of Civil Procedure with the same effect, and is there as follows: “§416. A civil action is commenced by the service of a summons.- But from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where "the jurisdiction of the court is made dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy.” [MAJORITY — Westbrook, J.,] Westbrook, J., Held that the provision cited did not apply; and that the court had no jurisdiction; and accordingly vacated the order and dismissed the proceedings.