41 Barb. 102 | N.Y. Sup. Ct. | 1863
On the trial at the circuit the execution of the note, and its amount, were admitted. The defense set up was that the note had been previously prosecuted in a justice’s court, and a judgment rendered thereon by the justice, which it was claimed, was a bar to this action. It was shown that a summons had been issued by a justice of the peace, November 28th, 1856, returnable 5th December then next, at one o’clock P. M. This summons was duly and properly served and returned by the constable. On the return day, the justice, by mistake, and in the belief that the summons was returnable at nine o’clock A. M., waited one hour, and called the action at 10 A. M. and then proceeded and tried the cause upon testimony, and rendered a judgment for the plaintiff for the amount of the note, instead of waiting till 2 P. M. the proper hour. The justice’s judgment was not appealed from. The justice, some five days subsequent to entering the judgment, on discovering his mistake, and at the request of the plaintiff, made an entry in his docket stating the fact of the mistake and declaring the judgment canceled.
At the circuit the judge held this justice’s judgment void, and that it constituted no- defense to the action in this court. To this holding the defendant duly excepted. This presents the whole case. It is claimed by the defendant that the ■ justice had jurisdiction of the subject matter of the action, it
In looking at the confusion that is found in the language of some of the cases, I think it can be accounted for, in the difference of the character and nature of the different kinds of actions, and in the manner they are commenced! For
I think, therefore, this loose dictum “that the justice obtains jurisdiction of the person by serving the process,” not being universally true, even in theory, is too imperfectly expressed, to have it adopted as a law maxim. A consideration of its unsoundness for a single moment will show this to be so. If the service of the summons always gives the justice jurisdiction of the person, it would be immaterial whether it was served within the time required by law or not. The statute direction “that it shall be served at least six days before the time of appearance mentioned therein,” would amount to nothing. A service of three days would be as good for that purpose as one of six. The contrary has been expressly adjudged. (Stewart v. Smith, 17 Wend. 517.) This unsound dictum, I think, should be checked before it travels any farther. The following, if not a perfect rule, would be an improvement upon this dictum. When a legal summons issued by a justice has been duly served, giving to the defendant notice by such service of the
I think the judgment should be affirmed.
Hogeboom, Potter and Peckham, Justices.]