Gere v. Gundlach

57 Barb. 13 | N.Y. Sup. Ct. | 1869

By the Court, Foster, J.

The proceedings on the part of Peters & Knapp, in obtaining their judgment, were not authorized by the statutes, and were irregular; and there is no doubt that upon application of the defendant, made within a reasonable time, the court would have set them aside for that reason. But nothing can be clearer than that for defects, or irregularities, not affecting the jurisdiction of the court, and where no fraud or collusion is imputed, the remedy for such defects is given to the party alone, and that another judgment creditor is not entitled to have such proceedings or judgment set aside.

The only important question, therefore, is, did the court, in the action of Peters & Knapp, Require jurisdiction or not.

The order for a substituted service granted by the county judge, was not warranted by the statute, upon the evidence produced before him, for the reason that it did not contain the statements required by chapter 511 of the laws of 1853, as amended by chapter 212 of the laws of 1863, herein before quoted; and the amendment of 1863 declares that unless such affidavit shall show such facts, no such order shall be allowed by the court or judge.

If, therefore, the question of jurisdiction depended alone upon the service of the summons and complaint pursuant .to the order, I should have no doubt that such service would not confer it. It is true that within two or three days, after such substituted service, the wife of the defendant handed over to him the copy of the summons and complaint so served, but such delivery to him was less than twenty days before the judgment was entered. But from the time of such delivery he knew that such irregular and void service had been made, and perhaps could and did, by not interfering to prevent or to set aside the judgment, waive the irregularity. But however that may be, (and I am not inclined to lay any stress upon it,) I think that for another reason the court did acquire jurisdiction of the action, and had all the subsequent proceedings under its control.

From what appears before us, on this appeal, we are not authorized to say that the county judge had no right to issue the warrant of attachment. It does not appear that all the evidence upon which the attachment was issued is before us. And even if that were the case, I think enough appears affirmatively to show that the evidence authorized the judge to determine whether to grant it or not. And the appellant does not seriously question the right of the judge to grant the attachment; but as to that, mainly relies upon the .fact claimed, that the summons was not personally served, or a publication of it commenced within thirty days after the attachment was issued.

But the attachment was issued; and if it was legally issued, then all questions subsequent are questions of regularity, and not of jurisdiction; for the Code (section 139) provides that “ from, the time of the service of the summons, in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings.” This language is too plain to admit of dispute, and there can be no question that the issuing of an attachment is “the allowance of a provisional remedy.” (Code, tit. 7.)

[Onondaga General Term, June 29, 1869.

And there is no reason appearing why, in this case, the court -should give a strained construction of that section in order to favor the appellant. There is nothing to show that the demand of the respondents was not an honest one. But as I have no doubt in regard to the construction to be given to the 139th section of the Code, I will not further pursue the subject. The order appealed from should be affirmed, with $10 costs.

Bacon, Foster, Mullin and Morgan, Justices.]