By personal service of summons upon the defendant, as shown by the summons and the constable’s return thereon, the justice obtained
In Barnes v. Harris (4 N. Y., 376), GARDNER, J., says : “It may be assumed as a principle to which, it is believed, there is no exception, that a court having authority to issue a process acquires jurisdiction of the person of the defendant, prima, facie, by a personal service of that process upon him in the manner required by law.’
The same doctrine is followed and reasserted in Wilkinson v. Vorce (41 Barb., 374), where it was said, that although a constable who has served the process by which the action was commenced was prohibited from appearing and acting for the plaintiff upon the trial, and such action on "his part was an error for which a judgment would be reversed, it was not such an error as would take away the jurisdiction.
The defendant had an opportunity to appear on the return day. He neglected to avail of that opportunity to appear in person. Although the appearance for the plaintiff on the return day of the summons was by his agent or attorney, that appearance was ratified by the plaintiff, who appeared in person on the adjourned day, which was not more than eight days from the date of joining issue* and was, therefore, a time proper for the adjournment, irrespective of any appearance on the part of the defendant.
In Underhill v. Taylor (2 Barb., 348) it was held that where, on the joining of issue, a person appeared in behalf of one of the parties without objection, and without producing any evidence of his authority, but on the trial of the cause such party appeared in person, that such appearance by the party was evidence of the authority of the person who joined the issue to appear for him. Cady, P. J., in his opinion in that case, remarks, viz.: “ Taylor appeared in person on the trial of the issue which Edwards had joined for him. This was abundant evidence that Edwards had authority to join the issue.”
Second. In article 3, part 3, chapter 2 of the Revised Statutes (2 R. S., 232) it was provided, viz.: “Any plaintiff in a suit before a justice, except persons under twenty-one years of age, may appear and conduct his suit either in person or by attorney.” (Sec. 39.) And it was also provided in section 41, viz.: “Every defendant .in a suit, except persons under twenty-one years of age, may appear and defend
Section 2886 of the Code of Civil Procedure is as follows, viz.: “ A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same in person or by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs.”
Section 2S89 provides: “Any person, other than the constable who served the summons or the venire, or law ’partner or clerk of the justice, may be the attorney for a party to an action before a justice of the peace.”
Section 2890 of the Code is as follows: “ The attorney’s authority may be conferred orally or in writing, but the justice shall not suffer a person to appear as an attorney unless his authority is admitted by the adverse party or proved by the affidavit or oral testimony of himself or another.”
A careful inspection of section 45 of the Revised Statutes, which is quoted, and a comparison thereof with section 2890 of the Code, leads to the conclusion that there is no essential difference in the-language of the two provisions of the statutes. In the former ease the words “the justice shall not permit” are equivalent to the words found in section 2890, “the justice shall not suffer a person to appear,” etc. In other respects the provisions of the Code, which we have quoted, are essentially like the provisions of the-Revised Statutes above quoted. Under the Revised Statutes it was held, in Ackerman v. Finch, (15 Wend., 652), viz.: “A justice of
The learned appellant calls our attention to Sperry v. Reynolds (65 N. Y., 179), which was decided in 1875 while the Revised Statutes were in force, and insists that that is an authority overruling Ackerman v. Finch (supra). In Sperry v. Reynolds the summons was served by copy, and it was held that the service was not good, and that it was not sufficient to authorize the justice to proceed in the action in the absence of defendant. It Ayas further held in that case, viz.: “'Where the jurisdiction of a justice in an action depends upon the voluntary appearance of a party, such party may assail or defend against a judgment rendered against him by showing that he did not appear, or that the appearance of any -one for him was unauthorized.” And it was further held that there was nothing in the record then before the court to show that the justice obtained jurisdiction. That case was decided by a divided court, and EaRl, Com., in the course of the prevailing opinion, says, in respect to section 45, Revised Statutes, viz,: “ This statute was not passed for the protection of a party for whom an attorney may appear, but for the protection of the opposite party, and hence that party can waive any proof of the attorney’s authority. The plaintiff did waive it in this case by not objecting to Crandall’s authority to appear (Ackerman v. Finch, 15 Wend., 652), and hence they were concluded by his appearance.. There is no statute requiring the justice to take any proof of the authority to appear,
It will be observed, therefore, that tbe case now before ns differs from that one inasmuch as tbe justice bad jurisdiction in tbe case now in band, upon tbe return of tbe summons personally served. "We regard Ackerman v. Finch a binding authority applicable to tbe question now before us, although Bennett v. Brown (4 Comst., 254) and Davis v. Marshall (14 Barb., 96), and other authorities, are to tbe effect that a bond is necessary in certain attachment cases and must be given before tbe justice, obtains jurisdiction: and, so far as Ackerman v. Finch involved tbe question of tbe sufficiency ■of tbe steps to obtain jurisdiction, it may be regarded as questioned. We think in regard to tbe point involved in tbe case in band, that it remains as an authority undisturbed by any decision to which, our ■attention has been called, or which we have been able to find by our ■own research of tbe authorities.
In chapter 204 of tbe Laws of 1808, in tbe “act for tbe more ■speedy recovery of debts to tbe value, of twenty-five dollars,” passed April 11, 1808, section 25 was as follows: “ And be it further ■enacted, that it shall not be lawful for any justice, in any case to be tried at any court held before him, to admit or permit any person to appear and advocate in tbe said court in any cause to be tried before such justice, for any party in any manner whatever, provided nevertheless, that if any such person shall be prevented from attending on the trial of bis, her or their cause by reason of sickness or absence from the county in which any such cause shall be tried and proof thereof be made, such cause shall be exempt from the foregoing provision.” "While that section remained the law several decisions were made in cases arising under it. Our attention baa been called to those cases by tbe appellant.
In Rosekrans v. Van Antwerp (4 Johns., 229), decided in 1809, we find a reference to tbe Session Laws of 1808, where it was held that the justice bad no right to act mpon bis personal knowledge that tbe plaintiff was absent from tbe county, and it was held that
Appellant calls our attention to Tullock v. Cunningham (1 Cow., 256), where it was said “ the authority of an attorney, who ajipears either for a plaintiff or defendant before a justice, must be proved.” But that case was decided in 1823, and does not aid the defendant. Nor does the case of Beaver v. Van Every (2 Cow., 429), decided in 1823, where it was held again the justice had no right to decide from his own knowledge that the party was sick and unable to attend, the court saying, viz.: “ He should have required the usual proof of an authority'to appear.” Nor does Fanning v. Trowbridge (5 Hill, 429) aid the appellant, where it was again held that the justice had no right to allow an appearance by an attorney upon information received out of court as to the attorney’s authority, there being no evidence, warrant or waiver of proof in the court. Nor does Lester v. Crary (1 Denio, 81) aid the appellant. The summons in that case was returnable on the fifteenth of December. It was served by copy, and the justice stated in his return that he saw the defendant on the thirteenth of December, and it was agreed between the defendant and "Weaver that they would appear before the justice on the twentieth of December. The justice entered upon his minutes that the parties appeared on the thirteenth of December and adjourned until the twentieth of December. On the twentieth "Weaver and Crary went before the justice, and at the request of Crary the cause was adjourned to the twenty-fifth of December. On the twenty-fifth Crary did not appear. Weaver appeared and took judgment, and the court held that a suit can only be commenced by process “ or. by the voluntary appearance of the parties and joining issue,” and again repeated the doctrine, viz.: That a justice has no right to act upon information relating
We find nothing in the appeal book indicating that the defendant has any defense upon the merits to the plaintifE’s claim, or that any injustice has been done by the judgment which is rendered in the court below.
By the uniform practice of the courts in reviewing proceedings had before a justice of the peace, such judgments are to be sustained by every reasonable and warrantable intendment. (Schoonmaker v. Spencer, 54 N. Y., 366.)
Being of the opinion that the judgment below should, upon authority, be sustained, and having failed to discover any technical errors or defects affecting the merits, and being commanded by section 3063 of the Code of Civil Procedure “ to render judgment according to the justice of the case,” we come to the conclusion that it is our duty to sustain the judgment of the Justice’s Court and of the County Court, affirming the same. (Snyder v. Schram, 59 How. Pr., 409.)
Judgment of the County Court of Chemung county affirming the judgment of a Justice’s Court affirmed, with costs.
Judgment of the County Court of Chemung county affirming the judgment of a Justice’s Court affirmed, with costs.