48 N.Y.S. 1042 | N.Y. App. Div. | 1898
The claim of the appellant is that there is nothing in the record to show that the justice had jurisdiction of the person of the appellant, and that, therefore, the judgment rendered by the j ustice in favor of the plaintiff and affirmed by the County Court should be reversed.
The action is on a promissory note made by the defendants. On the 12th of May, 1896, a summons in the ordinary form was issued by a justice of the peace of the town of "Vestal, in Broome county, directed to any constable of Broome county, returnable on the 20th .of May, 1896. This was duly returned personally served on the defendants Ellen Baker and Charles J. Baker on May 13, 1896, by Floyd "Warrick, constable of said town. The return is in writing as follows:
*10 “ Become County, ss. :
“I hereby certify that on the 13 day of May, 1896, I served the within summons- on the within named defendants Charles J. Baker and Ellen Báker by delivering to and leaving with them, personally, a true copy thereof..
“ FLOYD WARRICK, .
. “Constable
On the return day the defendant Charles J. Baker appeared in person for himself and for defendant Ellen Baker and put in an answer for the-defendants which he subsequently withdrew. His-authority to appear for Ellen Baker ivas not shown. The plaintiff was called as a witness in his own behalf, and it appeared that he ' resided at Apalaehin in Tioga county. The' defendant Charles J. Baker was also called as a witness, and it appeared that Ellen Baker was his wife, but it did not appear where they resided.
The return of the'constable did not state the place where the-summons was served: Presumptively it was served within the county of Broome. (Potter v. Whittaker, 27 How, Pr. 10.) ' The-return complied with the statute. (Code Civ. Proc. § 2885.) The section cited does not require the place of service to be stated.
The general rule is that the territorial limits of a justice’s jurisdiction are eo-extensive with the limits of the county in which he resides. (2 Wait Law & Pr. 6.), The ordinary process issued by him in a civil case may be served at any place within his -county. Proof of such personal service gives the justice jurisdiction of the person of the defendant. (Hoffman v. Barton, 47 Hun, 409.) In ' . Sperry v. Major (1 E. D. Smith, 361) it was said that when a suit is commenced in a Justice’s Court by a long summons, personally served upon the defendant within the county, the- residence of the-defendant and jurisdiction of the court will be presumed. In Barnes v. Harris (4 N. Y. 375) it is said, that a court having, authority to issue' process prima facie acquires jurisdiction of the defendant by a personal service of such process in the manner-required by law.
In that case it was held that, in declaring upon a judgment rendered by a justice in a suit commenced by long summons, it' is not necessary to allege that the defendant was a resident of the county; that the summons having been duly issued and served by a con
The doctrine of the Barnes case .has not, I think, been overruled. It was, therefore, the duty of the appellant, if any fact as to residence existed that deprived the justice of jurisdiction, to have shown such fact before the justice or upon the appeal to the County Court as an error in fact. (Code, § 3057.) Rot having done this, the County Court correctly affirmed the judgment.
All concurred.
Judgment of the County Court affirmed, with costs.
