46 N.J.L. 50 | N.J. | 1884
The opinion of the court was delivered by
An action of assumpsit was brought by the plaintiff against the defendant as third endorser on two promissory notes—one for $345, dated May 10th, 1875, payable in nine months; the other for $151, dated May 21st, 1875, payable in nine months. These notes became due respectively on February 12th and February 24th, 1876. Suit was begun by summons tested February 10th, 1882, returnable February 21st, 1882. Service on the defendant was not made until March 1st, 1882, after the return-day had been changed by the deputy sheriff to March 7th, 1882. This change was made after February 25th, according to the evidence of the defendant, who testifies that on that day he saw the writ and told the officer that he objected to service because the return-
The court overruled this defence, and directed the jury to find a verdict for the plaintiff for the amount of both notes, with interest from the time they became due. To this the defendant’s attorney excepted, and the question of the legality of this ruling is raised on the rule to show cause why a new trial should not be granted.
It is evident from this statement that the summons was issued by the plaintiff’s attorney before the action was barred by the statute, and that it bore date of the day on which it was issued, according to section 43 of the Practice act. JRev.,p. 855. It was given immediately to the sheriff for service, but that officer, by neglect or for his own convenience, delayed the service. The plaintiff and his attorney had no intention at any time to abandon the writ, and supposed that their right was secured by due service before the first return-day, until after the alteration and service of the changed summons had been made. In Updike v. Ten Broeck, 3 Vroom 105, it was held that the making and sealing of a summons by the plaintiff’s attorney, in good faith, for the purpose of having it served, was the com- ■ mencement of the suit, although it was not delivered to the officer before the time when the action would be barred by the statute. It is not necessary that the writ should be issued, served and returned before the statute becomes a bar. The making of the writ is the assertion of the plaintiff’s right of recovery, and its object is to bring the defendant into court to
The cases cited in Kloepping v. Stellmacher show that alterations in the return of the summons are not limited to those writs that are said to be alive—that is, before the return-day has come. In Sloan v. Wattles, 13 Johns. 158, it is said the sheriff served the writ, and was about taking bond for appearance, when he discovered that the return-day was passed; he then altered the return-day, and served the writ anew. This was held to be regular. Ross v. Luther, cited in the note to People v. Singer, 1 Cow. 41, and Sullivan v. Alexander, 18 Johns. 3, appear to be like cases. It would be a surprise and
The rule to show cause will be discharged.