89 N.Y. 146 | NY | 1882
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *148
Judgment was entered August 31, 1858, in favor of the plaintiff against Angell and Mackey upon a joint contract. The judgment was by default and recited that the summons and a copy of the complaint had been personally served on Angell, one of the defendants. This recital was sufficient to show that the court had acquired jurisdiction, and even if the proof of service filed with the judgment-roll was defective, that irregularity did not show want of jurisdiction or affect the validity of the judgment. It having been rendered by a court of general jurisdiction, all intendments are in favor of its validity until want of jurisdiction is affirmatively shown. There was no attempt to disprove the recital, but on the contrary, its truth was affirmatively proved on the trial of this proceeding. If a motion had been made to vacate the *151
judgment, the informality of the proof of service could have been cured by amendment. (White v. Bogart,
It stood, therefore, as a valid judgment against both defendants as joint debtors, and bound their joint property, and the separate property of the defendant served. The present proceeding is not a new action, but a proceeding at foot of the judgment, under section 375 of the Code of Procedure, to make the judgment binding upon the defendant Mackey and his separate property as if he had been originally served. The action had been commenced against him in 1858 by the service of the summons on his co-defendant and joint contractor Angell (Code of Procedure, § 99), and the present proceeding is in the action which had been thus previously commenced.
The statute of limitations is no defense to this proceeding, unless such defense existed at the time the action was commenced. There is no statute which limits the time within which such a proceeding must be instituted. Section 379 of the Code of Procedure, as it stood when this proceeding was instituted, authorized the defendant to deny the judgment, or set up any defense thereto which may have arisen subsequently, and in addition, to make any defense which he might originally have made to the action. He was under this section at liberty to show that the judgment had been paid or otherwise discharged, and if twenty years had elapsed probably the presumption of payment would have applied. But the action having been commenced in due time, by service on his co-defendant, he cannot sustain the defense of the statute of limitations. The statute places him with regard to his defense in as good a position as though judgment had not been entered, but in no better.
The judgment should be affirmed.
All concur, except MILLER and TRACY, JJ., absent.
Judgment affirmed. *152
