1 Mills Surr. 590 | N.Y. Sur. Ct. | 1900
The only controversy upon this accounting relates to the claim of Theresa L. Knapp against the estate arising out of the following facts:
The parties have duly stipulated pursuant to the provisions of section 1822 of the Code of Civil Procedure that this claim might be heard and determined on judicial settlement.
It appears from the evidence that under the laws of the State of Pennsylvania the transcript of a judgment rendered by an alderman may be filed in the office of the prothonotary of the county, and, that the judgment docketed thereon shall thereafter be and have all the force and effect of a judgment originally obtained in the Court of Common Pleas, an Alderman’s Court being one of limited jurisdiction and the Common Pleas one of record and of general jurisdiction. The summons on which this judgment was rendered was not personally served and the recitals in the record fail to show affirmatively that the court had acquired jurisdiction by substituted service in the manner authorized by the laws of that State; the proof presented by the claimant supplemental to the record is unsatisfactory, but it is asserted that such defect in the affirmative proof is remedied by the well-established presumption in favor of the jurisdiction of courts of general jurisdiction. Is such presumption operative here, this judgment having been originally rendered by a court of limited jurisdiction ? The statute of the State of Pennsylvania provides that a summons issued by a justice or alderman shall be served on the defendant by a constable “ by producing the original summons to and informing him of the contents thereof or leaving a copy of it at his dwelling-house in the presence of one or more of his family or neighbors at least five days before
Under the cases cited, it is apparent that no presumption of jurisdiction could be indulged in favor of the judgment while it remained one of the Alderman’s Court. Does the docket of this judgment in the Common Pleas relieve it of its disability in this particular and entitle it to all the presumption that would have attached had it been originally obtained in the Court of Common Pleas % The counsel for the administrator urges with considerable force that the purpose of the
The constitutional provision that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of any other State, does not preclude an inquiry into the question of jurisdiction. Pennywit v. Foote, 22 Am. Rep. 340; Hunt v. Hunt, 72 N. Y. 217.
On the part of the administrator it is claimed that the alleged substituted service by leaving a copy of the summons at the dwelling-house of defendant was invalid for the reason that at the time of such service defendant, in fact, had no dwelling-house in the city of Bradford, or in the State of Pennsylvania. It appears from the evidence that for some time prior to the issuing of the summons the decedent had resided in Bradford, and as a tenant had occupied a dwelling belonging to the claimant. Being in arrears in payment of rent, the claimant had caused to- be issued a process under the laws of that State whereby substantially all of the household goods and effects of the decedent had been seized and sold, such seizure and sale terminating the tenancy. The decedent being thereby deprived of the means of maintaining a dwelling for herself and family, went to reside with a son in the State of Hew York. Such seizure, sale and removal from the city of Bradford were prior to the date of the alleged service. At the time of such service decedent had gone from Bradford with the intention of residing elsewhere. She, in fact, had no dwelling-house in the State of Pennsylvania at that time. The constable Tadder was called as a witness by the claimant, and on cross-examination testified as follows: “ Q. Did you serve the summons? A. Yes, sir. Q. Did you return that you served the summons by leaving a copy at the dwelling-house? A. I don’t know; I never saw it. I have never.seen it from that day to this; might have been by copy, might have been by personal service. Q. You can’t tell whether
This witness also testified that he told the attorney for the administrator that the house where the defendant lived was on Webster street, in the city of Bradford, and that there was a thin partition running between the part occupied by the decedent as a boarding-house and the other party occupied by Mrs. Hughes as a grocery, and that Mrs. Hughes would remember the facts relating to the service. ' Mrs. Hughes- was called and sworn as a witness on behalf of the administrator. She testified that she remembered the circumstances of the service of the summons; that Mrs. Horton had lived in the house immediately joining hers, but that the two- places were in no way connected; that the copy of the summons was left with her, and that prior to that Mrs. Horton had left Bradford and gone to her son’s at State Line to reside. She refreshes her recollection as to the particular date of Mrs. Horton’s leaving by having purchased certain articles of the decedent the day she went and giving her credit upon her books on the same day for the purchase price. Her books being produced in court, showed the date of such purchase and credit to be September twenty-first.
The substituted service by leaving copy of summons at what was assumed to be, but what in fact was not, the dwelling-house of the defendant, was entirely insufficient to confer jurisdiction. Consequently, as no proof has been made as to the merits of the original demand aside from the record of the judgment itself, the claim must be disallowed.
A decree will be accordingly entered.
Decreed accordingly.