Ackerman v. Finch

15 Wend. 652 | N.Y. Sup. Ct. | 1836

By the Court,

Cowen, J.

Neither attorney objected to the authority of the other, and the justice neither required nor took any proof of their authority pursuant to the 2 R. S. 233, § 45. I think, however, that non-objection must be received for admission, within the meaning of the statute. That declares expressly that admission shall be equivalent to proof. 2 R. S. 233, § 45. Ackerman has adopted the acts of his own attorney in appearing and making questions in the cause, by now insisting on the objections as his own. The attorney was equally his for the purpose of waiving objections. The statute requiring proof was passed for the security of the x opposite party, and a man may always waive a law introduced for his benefit. But it is different with regard to the summons. As to that the objection was made. This process is given by the act to abolish imprisonment for debt, and its return is reduced in time : it shall be made returnable in not less than two nor more than four days from the date thereof, -n cage q)e piaintiff be a non-resident of the county, on the oath and security as in case of a warrant in favor of a non-resident. Session Laws of 1831, p. 403, § 32. 2 R. S. 228, § 17. But the defendant was himself a non-resident, and the 33d section provides that when, by § 30, no warrant can go, the defendant may be proceeded against by short summons or short attachment. It adds, that if such defendant be proceeded against otherwise, the justice shall have no jurisdiction of the cause. Taking the 30th and 31st sections together, which the 33d section intends we should do, no warrant can in general issue upon a contract. The question arises upon this section, whether any security be necessary where the defendant resides out of the county. The true meaning of the section is, that the defendant shall be proceeded against primarily by short summons, or secondly by attachment, provided a proper case for this shall exist; and in order to entitle the party to the extraordinary process, no doubt he must give proof and security, whether the defendant be resident or non-resident, and whether the plaintiff be so or not. The proof and security in-this case respects the nature of the proceeding; and sections 32 and 33 may therefore be considered, for the purposes of the present question, precisely as if they were each providing simply for the ordinary process of summons. The attachment is another affair, and stands on distinct grounds. These sections provide for two classes of persons. The 32d section gives the short summons to a nonresident, on his making oath and giving security. On this he may proceed by that sort of summons against a resident, or he may take the ordinary summons without oath or security. It is evident, on the face of this section, that the short summons comes exactly in the place of the old plaintiff non-resident warrant, which was taken against a resident for the purpose of tying him up to a short adjournment. Then the option lay between the warrant and the ordinary summons; now comes the 33d section ; and by this the short summons is allowed in the place of the old defendant non-resident warrant. Formerly you never could go against him by summons, but must take a warrant. 2 R. S. 227, § 13. Now- you cannot proceed by the old summons; you must take a short one. And what renders the identity more striking, this is to be on the same oath and the same security as were necessary to obtain the warrant in the place of which i have supposed the short summons to come. The security is still regulated by the revised statutes. 2 R. S. 228, § 17, sub. 2.

Under the old law, any person might have a warrant against a non-resident, ■ simply because he was so. The statute here made no distinction. 2 R. S. 228, § 17. So under the old statute, though you were a non-resident, you might take a warrant against a non-resident of course. This was your only process. So here you may take a short summons of course. If the defendant was a non-resident, it never was allowed, under the old law, that you could cut off his right to the usual adjournment, by coming yourself as a non-resident and giving security. That would not help you at all. So here, giving security was a deed of supererogation. The process is founded on the defendant’s character—not the plaintiff’s. In this case it could make nothing against the plaintiff, that he applied for process as a non-resident. His own estimation of his character could detract nothing from his legal rights. Utile per inutile non vitiatur. The oath of indebtedness and regular security, had it been given, could only be regarded as greater caution. His right to this very summons was perfect without it.

It is clear that a justice cannot, by amending a proceeding in a particular which is necessary to give him jurisdiction, acquire an authority nunc pro tunc. But here was no defect.

• The judgment of the common pleas should be affirmed.

Judgment affirmed.