Opinion
Submitted May 27, 1938 —
Decided September 16, 1938.
1. In an attachment suit on the ground that defendant is an absconding debtor, it is necessary to show that defendant, with intent to defeat or delay the demands of his creditors, conceals or withdraws himself from his usual place of residence beyond the reach of process; and it is necessary for the creditor in such cases to ascertain, if he can do so by all natural ordinary means at hand his debtor's whereabouts, in order to serve him with process.
2. The proofs in this case showed that the alleged absconder, being a man without a family, occupied a room at a certain address; that he got his meals at a nearby restaurant, where he was seen almost daily by the witnesses; and that he worked, whenever work was available, at a tailor shop in the same building wherein he lived. Held, that this evidence failed to disclose any diligence on the part of plaintiff to ascertain these facts, and therefore the issuance of the writ of attachment was not justified.
On appeal from the Hudson County Circuit Court, in which Judge Ackerson filed the following opinion:
"This is defendant's rule to show cause why the writ of attachment herein should not be quashed. The writ was obtained on affidavit that defendant had absconded from his creditors and was not a resident of this state. 1 Comp. Stat., p. 132, § 1.
"A debtor is a resident within the meaning of the act, if he has a residence or place of abode in this state of a temporary or permanent character at which a summons might lawfully be served. Coles v. Blythe, 69 N.J.L. 203. Section 52 of the Practice act ( Pamph. L. 1912, ch. 264, p. 469) provides that the first process in personal actions `shall be a summons, a copy whereof shall be served on the defendant in person, or left at his usual place of abode.' It has been held that a defendant's usual place of abode, within the meaning of the statute, is the place where he is actually living at the time when the service is made. Sweeney v. Miner, 88 Id. 361; Mygatt v. Coe, 63 N.J.L. 510.
"The defendant has produced the testimony of three witnesses besides himself, and the plaintiff two, one of whom is the plaintiff's own attorney. The latter's testimony seems to have been offered only for the purpose of minimizing the effect of plaintiff's other witness, who, along with defendant and all of his witnesses, established that defendant's usual `place of abode' within the meaning of the relevant statute was at the time this writ was issued at 413 Grove street, Jersey City.
"Since the defendant was a resident of this state at the time in question, it remains to be considered whether he was an absconding debtor within the meaning of the act. An absconding debtor is one who, with intent to defeat or delay the demands of his creditors, conceals or withdraws himself from his usual place of residence beyond the reach of process. The creditor, however, is bound to ascertain, if he can do so by all natural ordinary means at hand, his debtor's whereabouts, in order to serve him with process. Concealment with intent to defeat or delay his creditors has a relative significance. It must depend upon the facts of each case, and they must be such, and of such probative force and effect, that the court can conclude that the debtor was eluding the service of process, that he intended to do it and that his conduct or concealment was such as to lead his creditors to the natural belief that he absconds. Stafford v. Gaiser, 57 N.J.L. 574, 578.
"The picture of the defendant's situation as presented by the depositions taken on this rule, is that of a man who has failed in business, returned to the plaintiff the machine, the unpaid license fee for the use of which is the subject of the present action, turned over to his mortgagee the goods covered by a chattel mortgage on the physical assets of his small business, and who is working at such work as he can find to do, while residing alone in a single room in the rear of a tailor shop at No. 413 Grove street, Jersey City. Having no family he gets his meals in a nearby restaurant, is seen almost daily by most of the witnesses either at the restaurant or at the tailor shop where he works, when work is available there. He is apparently a foreigner who does not express himself well in English, which is apparently true of his witnesses, and this no doubt accounts for some of the lack of comprehensiveness and relevancy in parts of the depositions.
"After a careful study of the depositions I am forced to conclude that the facts presented are not of such probative force and effect that the court can properly say that the defendant was eluding the service of process and absconding within the meaning of the pertinent section of the Attachment act.
"This conclusion is greatly strengthened by the lack of evidence that the plaintiff used all `natural and ordinary means at hand' to ascertain the whereabouts of the defendant. This is requisite in all such cases. Stafford v. Gaiser, supra. The testimony of plaintiff's attorney as to questions asked of plaintiff's witness, Jack Nalbandian, concerning defendant's whereabouts was expressly offered for the purpose of neutralizing the effect of such witnesses' apparently unexpected denial of having said to the attorney that defendant did not live at No. 413 Grove street, Jersey City, c.
"Even taking this testimony as direct evidence, it does not meet the full measure of the plaintiff's duty under such circumstances. We are left pretty much in the dark as to what, if any, efforts were made to locate the defendant.
"The conclusion is that the rule to show cause must be made absolute and the writ of attachment herein quashed for the reasons already stated, which makes it unnecessary to consider whether the claim of the plaintiff is for a liquidated sum.
"An order may be presented in accordance with the conclusion thus reached."
For the appellant, Samuel Jacobs ( Louis J. Greenberg, of counsel).
For the respondent, William J. Baker ( John L. Ridley, of counsel).
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Judge Ackerson in the Circuit Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 16.
For reversal — None.