Page:Federal Reporter, 1st Series, Volume 4.djvu/858

 §^1; FEDERAL SEPOBTBB. �turned with the marshars indorsement that he had been unable to find the respondent, but had attached the credits and effects of the respondent in the hands of a garnishee. An interlocutory decree and order of reference were then entered on their default. Shortly after the said process was issued it was discovered that the libel, though swqrn to, had not been signed except by the proctors as proctors. It was then Bjgned, without permission of the court, by one of the proctors in behalf of the libellant, who had sworn to it as attorney in fact. Subsequently, on October lôth, on affidavit of one of the proctors, setting forth that when the said process was served the garnishee had no credits or efïeets of the respondent, but that it now holds such credits and effects acquired since that time, an alias process was dîreeted by the court to issue, and an attachaient, was again levied by themarshal on. the credits and effects of the respondent in the hands of the garnishee. 'Oh't'He feftirn-day of' thîe seicond process neither the respond- ent nor the garnishee appeared, and a second interlocutory decree and order of reference to a commissioner were entered. Testimony was taken before the referee, his report made and filed, costs taxed, and the final decree eneered October 20ih. ' On October 25th an order to show cause on affidavit was granted to the proctor for the respondent why the final decree and the process should not be vacated, or, if not vaeated, why the re- spondent shouldnot beallowed to appear herein and answer, etc., _ . Samuel W. Weiss, for respondent. �Beebe, Wilcox & Hobbs, ior libellant. �Choate, D. J. The return of the marshal to the process ■shows that he made diligent aearch for the principal defend- ant and could not find him. The moving affidavits raise such question of the truth of this return that if it were material an inquiry would be ordered. But I think the order of the court that an alias issue, made on proof by affidavit that the court had acquired no jurisdiction by reason of having made no attachment, must be deemed to have vacated in effect the first interlocutory decree. .It treats that decree as a nuUity. It would have been proper and more rcgular to have entered ����