3 Wend. 202 | N.Y. Sup. Ct. | 1829
By the Court,
Two questions arise in this case: 1st. Whether a plaintiff, being a constable, can legally serve a summons in his own favor ? 2nd. Whether the return upon the summons can be impeached in this action?
The first question was decided in the case of Tuttle v. Hunt, (2 Cowen, 436.) It was there held that a plaintiff in a justice’s court might serve his own summons, either where he is himself a constable, or is specially deputed for the purpose, in analogy to the case of a capias, where no bail is required, which may be served by the sheriff when he is plaintiff, or by any other plaintiff by special deputation. (4 Johns. R. 486, Bennet v. Fuller.)
I am inclined to think the constable’s return upon the summons was not traversable in this action. The return, though false, gave the justice jurisdiction of the person of the defendant; for the act, (Statutes, vol. 6, 280 c. § 8,) provides that the constable serving the summons shall, upon the oath of his office, return thereupon the time and manner of executing the same, and sign his name thereto : and in case the defendant does not appear at the time. and place appointed in such summons, and it shall appear by the return endorsed thereon that the summons was personally served, the justice shall then proceed, &c. The return of the constable is the evidence upon which the statute authorizes and requires the justice to proceed. He must therefore obtain jurisdiction of the defendant’s person by virtue of the return ; and the judgment which may be subsequently rendered will protect the magistrate, the party, and the officer who may be instrumental in enforcing it. The constable’s return is con-
The want of jurisdiction in a court rendering a judgment? may be shown collaterally whenever any benefit or protection is sought under the judgment. It renders the judgment coram non judice and void; and in case of a limited and special jurisdiction, the magistrate and all others concerned in enforcing the judgment would be trespassers. (Bigelow v. Stearns, 19 Johns. R. 39. 15 Johns. R. 121. Elliott v. Pearsall and & others, 1 Peter’s U. S. Rep. 340.) But where the court has jurisdiction, and the proceedings are regular on the face of them, trespass will not lie. (1 Chitty’s Pl. 184. Warner v. Shed, 10 Johns. R. 138. 1 Wendell, 126.) That the individual who made the false return was the plaintiff in the suit, cannot, that I perceive, alter the case. The party injured has a perfect remedy by an action for the false return ; or, if the defendant acted wilfully and corruptly, he might probably be punished criminally, on an indictment for a misdemeanor. (Parmington, 21, 2. Cowen’s Tr. 274.)
The defendant must have judgment
