Abrams v. Fine, 28 Misc. 533

Abrams v. Fine

28 Misc. 533 | N.Y. App. Term. | 1899

Freedman, P. J.

This is an appeal taken by the defendant Israel Fine from a judgment rendered against him by default, on his failure to appear, and from an order denying a motion made to open such default. The complaint in this action was oral and was for the conversion of personal property. The return of the court below shows that the summons was returnable on the 9th day of March, 1899, at which time the plaintiffs appeared and the defendants did not appear; that the case was then adjourned from time to time until the 3d of April, 1899, at which time the plaintiffs failed to appear and the case was dismissed; that the case was subsequently and without notice to the defendants restored to the calendar and set down for trial for April 10, 1899, at which time the plaintiffs took an inquest, and judgment hy default was rendered against the defendant Fine, the defendant Price not having been served with the summons. At none of the above-mentioned times did the defendants appear. The judgment directed the arrest and imprisonment of the defendant Fine upon execution. Subsequently a motion was made by Fine to open his default, based upon an affidavit of merits and a stater ment of the reasons for his failure to appear, which motion was denied, and thereupon this appeal was taken.

Municipal courts are creatures of the statute and possess no jurisdiction except that which is expressly conferred, and in all nlatters relating to the acquirement of jurisdiction an authority conferred must be strictly pursued, and nothing, as to jurisdictional matters, can be taken by implication. These rules are too well known to need any citation of authority in their support. The court below acquired jurisdiction of the person of the defendant by the service of the summons, but lost jurisdiction at the time the plaintiffs failed to appear upon the day to which the case had been adjourned and at which time the record shows the case was dismissed. There is no express authority conferred upon municipal courts to restore a case to the calendar and proceed to *535trial thereof after it has once heen dismissed for the failure of the plaintiff to appear. Such authority could only be conferred in a proper case by the express consent of the defendant, or by his voluntary appearance without objection, after service of notice of motion upon him, which fact should appear in the record. “ If a justice assumes jurisdiction when he has it not, his judgment will be vacated.” Benjamin v. Benjamin, 5 N. Y. 383; Beach v. Nixon, 9 id. 35. In the case at bar, the defendant did not appear in court until judgment was rendered against him, and then only for the purpose of moving to set aside the judgment and excuse the default. It follows, therefore, that the judgment herein was taken at a time when the court below had no jurisdiction over the person of the defendant, and that for that reason it is erroneous and must be reversed. Weeks v. Lyon, 18 Barb. 530; Wilcox v. Clement, 4 Den. 160; Douglass v. Blackman, 14 Barb. 381.

MacLean and Leventbitt, JJ., concur.

Judgment reversed, with costs to appellant.