The opinion of the court was delivered by: KALODNER
General Admiralty Rule 2 provides that: "In suits in personam the mesne process shall be by a simple monition in the nature of a summons to appear and answer to the suit * * * with a clause therein to attach his [respondent's] goods and chattels * * * if said respondent shall not be found within the district. * * *" 28 U.S.C.A. following section 723.
The instant case presents the simple question: What does "found" mean as used in Rule 2?
On February 26, 1941, the libellant Celio, a resident of Brooklyn, N.Y., filed a libel in personam and in rem against the respondent, Walter Jones, and the M/S "Valmar" Jones is and was a resident of New York City. He owned and operated the "Valmar" in foreign commerce under a foreign registry. Following the filing of the libel -- and independent of the rem proceeding -- the United States Marshal in this District was given a citation with attachment of goods, etc., for service upon Jones. Pursuant to the citation the Marshal attached the "Valmar". The respondent Jones thereupon moved to set aside the citation against the "Valmar" under the writ of foreign attachment on the ground that he was present in Philadelphia at the time the libel was filed and the writ issued, and that he could have been "found" by the Marshal, and that therefore the foreign attachment was invalid.
In support of his contention, the respondent Jones called attention to the following undisputed facts:
That on February 25, 1941 -- the day before the libel was filed and the writ issued -- that in company with another person the respondent Jones called at the office of the United States Marshal, where he made his identity known and left a letter
with a Deputy Marshal, addressed by his proctor to the Marshal, stating, in part: "This is to advise you that the proposed respondent, Walter A. Jones, is now staying in Philadelphia, and if you will advise me when the writ in the aforesaid cause has been handed to you for service, I will produce Mr. Jones so that he may be served, and there will be no foreign attachment of the Valmar or any other of Mr. Jones' property"; that on the following day, February 26, 1941, a short time before the filing of the libel, that Jones again presented himself at the United States Marshal's office, inquired as to whether there had been any suit started or writ issued, and was advised that the Marshal had not as yet received any writ; that subsequently on the same day Howard M. Long, Esquire, proctor for Jones, was advised by the Marshal's office that suit had been started, and that a citation with clause of foreign attachment against Jones had been given to the Marshal's office for service, whereupon Long advised the Marshal that Jones would present himself at the Marshal's office between 9:30 and 10 A.M. the following morning, to wit, February 27, 1941, for service -- the return day of the writ being February 28; that nevertheless the Marshal attached the "Valmar" under the clause of foreign attachment on the afternoon of February 26. The Marshal's return
shows the service of process on the respondent Jones "personally, at the U.S. Court House" at 9:27 A.M.., February 27, 1941, and the attachment on the "Valmar" the previous day.
It is the respondent's contention that under these facts the foreign attachment was invalid and should be dissolved.
I am in agreement with that contention.
It is well settled that the sole requisite for issuance of a foreign attachment lies in the fact that the respondent may not be "found" within the district.
It is also well settled that under a process of foreign attachment, it is the duty of the Marshal to serve the party if he can be "found" in the district, and that the Marshal has no right to attach goods, chattels, etc., before endeavoring to find the partyf himself. See Benedict on Admiralty, vol. 1, 5th Ed., section 290. Of course, the Marshal is not required to so devote himself to a fruitless search for the respondent as to lose the opportunity of attaching his property.
In this connection, attention may be called to the fact that the "Valmar" was already in the custody of the Marshal as a result of an independent attachment in other litigation.
There are numerous authorities in support of the proposition that a foreign attachment will not lie if the respondent can be "found" in the district. See Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 85 U.S. 272, 21 L. Ed. 841; The Athanasios, D.C., 228 F. 558; Shewan et al. v. Hallenbeck, D.C., 150 F. 231.
The libellant relies on American Potato Corp. v. Boca Grande S.S. Co., D.C., 233 F. 542, 543. In that case the respondent was a Delaware corporation whose main office was in New Orleans. On the day that the vessel (a tramp coaster without a regular run) was attached in Philadelphia, while undergoing repairs and loading a cargo, the president of the respondent corporation was in charge of the vessel as its master. Respondent moved to set aside the attachment on the ground that it was "doing business" in Philadelphia and, further, that the master, as president of the corporation, was a proper official upon whom service of a monition could have been made, and that therefore no foreign attachment could lawfully be levied. Judge McPherson denied the motion to set aside on the ground that "The mere presence of Capt. Lawrence in Philadelphia was not equivalent to the presence of the corporation".
It is clear that Judge McPherson premised his decision on the fact that the presence in this district of an officer of the corporation was not the presence of the corporation itself. In the instant case the respondent Jones is an individual, and thus ...