#### SOLOMON L. SIMPSON, Appellant, *v.*THOMAS F. BURCH. JOHN CLARK and others, Respondents, *v.*THE SAME.

*Chap.*511 *of*1853, *and chap.*212 *of 1863—order of substituted service*— *what affidavit*sufficient—Code, § *139—Attachment—omission to sene summons within thirty days after issuing of.*

An affidavit of the-sheriff stating that he had made diligent and proper efforts to serve the summons upon the defendant by going to his place of business and residence, but that he could not be found in this State, is sufficient to authorize the county judge to order a substituted service, pursuant to chapter 511 of 1853, as amended by chapter 212 of 1863.

*Collins*v. *Campfield*(9 How., 519); *Foot*v. *Harris*(2 Abb., 454) distinguished.

The omission to serve the summons within thirty days of the allowance of an attachment, entitles the defendant to avoid all proceedings after the issuing thereof, but does not render such proceedings void as against third persons.

*Waffle*v. *Goble*(53 Barb., 517); *Taddiken*v. *Cantrell*(8 S. C. [1 Hun], 710) distinguished.

Appeal from an order denying a motion to set aside and' vacate the judgment in the above entitled action, on the ground that the court acquired no jurisdiction thereof.

The action was commenced by the issuing of a summons. The defendant could not be found, and the summons was served pur*316suant to an order granted by Hon. C. Whitney, county judge, under the act of 1853, providing for a substituted service. A warrant of attachment was duly issued and served. Judgment was entered August 20, 1874. Solomon L. Simpson subsequently obtained a judgment against the same defendant, and made the motion to vacate and set aside the judgment of Clark *&*Co.

*C. H.*David, for the appellant.

*Howe &*Rice, for the respondent.

Gilbert, J.:

The plaintiffs have recovered a judgment in this court against the defendant, on which an execution has been issued, and a levy made upon his goods. Mr. Simpson, a junior creditor of the defendant, by a judgment upon which an execution has been issued to the same sheriff, moved at Special Term for an order vacating and setting aside the judgment and execution of the plaintiffs, on the ground that the court acquired no jurisdiction of the defendant. It appears that the defendant was not served personally, but that an order was made by the county judge of Oswego county, where the venue was laid, for a substituted service, pursuant to the act of 1853,* to facilitate the service of process in certain cases, as amended in l-863.† The order was made upon an affidavit of the sheriff of Oswego county, stating that he had made diligent and proper efforts to serve the summons upon the defendant, by going to his place of business and residence, but that he could not be found m *this State.*

It is objected that the affidavit does not show that the sheriff made diligent and proper efforts to serve the summons personally, or that the defendant could not be found. We think the affidavit was sufficient to authorize the county judge to make the order. The evidence presented to him was competent, and tended to prove the facts on which his authority to issue the order depended. Nothing more is required. ‡ It is urged that the statement that the defendant could not be found *in this State*vitiated the affidavit. *317The answer is, that it was some evidence to prove that the defendant could not he found anywhere, within the meaning of the act of 1853. Whether it was sufficient to satisfy the county judge or not was for that officer to decide. In *Collins*v. *Campfield,** and *Foot*v. *Harris,*† the affidavit on which the order was made showed where the defendant might be found out of the State. When such a fact appears in the affidavit, it is proved affirmatively that the defendant can be found, and the order should not be made. Those cases are clearly distinguishable from this.

As against the present applicant, we think the attachment proceeding is sufficient to uphold the judgment. Section 139 of the Code expressly conferred jurisdiction of the action from the time of the allowance of the attachment. The omission to serve the summons personally or by publication within thirty days afterward, was an irregularity which entitled the defendant to avoid all proceedings after the issuing of the attachment. But such omission did not render the proceedings void as regards third persons. The defendant undoubtedly might waive the effect of such omissions, and that is the test whether the defect shown is a nullity or a mere irregularity. *‡***Upon this ground, we think the case of *Gere*v. *Gundlach*§ was rightly decided. In *Waffle*v. *Goble,*|| and *Taddiken*v. Cantrell,¶ the defendant, and not a third person, was the moving party. For that reason, those cases are not authority for the position assumed by the applicant here.

The order should be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed, with ten dollars costs.

*

 Chap. 511.

†

 Chap. 212.

‡

**Miller v. Brinkerhoff, 4 Den., 118; Staples v. Fairchild, 3 Comst., 41; Skinion v. Kelley, 18 N. Y., 355; Collins v. Ryan, 32 Barb., 648.

*

9 How., 519.

†

2 Abb., 454.

‡

**Clapp v. Graves, 26 N. Y., 418; Bascom v. Smith, 31 id., 595; Reinmiller v. Skidmore, 7 Lans., 161; affirmed in Court of Appeals, January, 1875.

§

57 Barb., 13.

||

53 Barb., 517.

¶

 4 N. Y. S. C., 222; S. C., 1 Hun, 710.