4 How. Pr. 246 | N.Y. Sup. Ct. | 1849
The first point to be determined on the question of regularity is, when the summons and complaint were served. Mr. Ingalls, the defendant’s attorney, swears that the summons and complaint were "brought to him by the defendant on the 21st September last, and that McKie informed him that they were served on the 19th September. The attorney does not swear to his belief of the truth of this information; and McKie, the defendant, although he has made an affidavit in the cause, is entirely silent
The defendant insists that the answer was served in time, and the judgment irregularly entered, on the following grounds: 1st, as to service of the answer. It appears by the affidavits that the plaintiff, who is an attorney and conducts this action in person, resides in Fonda, Montgomery county, and Mr. Ingalls, the defendant’s attorney, resides in Greenwich, Washington county. On the 26th October, the answer was prepared and sent by the defendant’s attorney to the residence of his client in Cambridge, about twelve miles from Greenwich. The defendant being absent about fourteen or fifteen miles from home, the papers were left with his family. On his return home, the defendant swore to the answer before Mr. Crocker, in Cambridge; and the latter gentleman, on the same 26th October, folded the answer and affidavit in the form of a letter, and legibly directed it to the plaintiff at Fonda, and paid the postage from Cambridge, in which office he deposited it, to Fonda. The plaintiff admits that he received it on the 31st October, and not before; and the question is, whether the service was a good service on the 26th October, when it was deposited in the Cambridge office.
The 410th section of the code enacts that service by mail may be made, when the person making the service and the person on whom it is to he made, reside in different places, between which there is a regular communication by mail. “The person making the service,” is the attorney on whose behalf it is done, and not an intermediate agent employed by him; were it otherwise, the attorney might employ an agent, living in a district, visited only by a weekly mail, and thus prolong the time for answering. This section of the code was adopted from the former practice. (See rule 7 of the old law rules.) The language of the rule was, that service by mail should be good in all cases where the attorneys reside in different places, between which there is a communication by mail. In one respect the code is more stringent than the rule, as it requires that
2d. It is urged that the judgment was irregularly entered, because it was entered in defiance of the order of Judge Lee, county judge of Washington county. It appears that on the 10th October, Judge Lee granted an order staying all proceedings on the part of the plaintiff until the decision of the Supreme Court on the motion, then noticed to be heard before Judge Willard, at bis chambers, for the 80th October, to change the place of trial. This was served on the plaintiff on the 17th October, but was disregarded by him. It is plain by § 401, et seg. of the code, that the judge had no jurisdiction of the motion, at chambers, and consequently the order to stay proceedings for that purpose was void. It appeared on its face to be a nullity. An order was never a stay of proceedings unless accompanied with a notice of motion. But the notice of motion, to be of any efficacy to uphold the order, must be to a court having jurisdiction of the matter. Again, the 47th rule allowed the plaintiff to .proceed to judgment unless the order specially directed otherwise.
On the whole, I think the judgment was regularly entered. But as the defendant swears to merits, he must be let in upon terms.
- The judgment must be set aside on the payment of ten dollars’ costs.
The defendant has connected with the motion to set aside the j udgment, a motion to change the place of trial from the county of Montgomery, where the plaintiff resides, and which he has designated as the place of trial, to the county of Washington, where the defendant resides. The professed object of this motion is for the accommodation of the parties and their witnesses, as the cause of action is not in itself local, but transitory.
Under the former practice, a motion to change the venue, which was the same as the present motion to change the place of trial, was in general required to be made before plea pleaded, but was sometimes allowed after issue, when no trial had been lost. (1 Dunlap, 412.) The practice prior to, and under the Revised Statutes, is fully stated, and the cases are well collected in a note by the reporter to Britain v. Peabody, 4 Hill, 62, &c. Unless that practice has been changed by the Judiciary Act of 1847, or by the Code of Procedure, it is still regular to move to change the place of trial before issue, It is clear that the justices who revised the rules, in August 1849, in order to adapt them to the code, were of opinion that the former practice in this respect remained unchanged. (Rule 47.)
The 125th section of the code, relates solely to transitory actions, of which the present action is one, and it provides that they shall be tried in the county in which the parties or any of them shall reside, at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint, subject., however, to the power of the court to change the place of trial, in the cases provided by statute. There are no statutes on this subject but the Revised Statutes and the Judiciary Act, to which the code can refer. The Revised Statutes enacted the practice as it was at that time settled by the courts in transitory actions, without essential alteration. They required the issue in such actions to be tried in the county where the venue should be laid, unless the court should deem it necessary for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial to order such issue to be tried in some other county; in which case the same should be tried in the county so designated. And the 49th section of the Judiciary Act authorized this court to order an issue of fact joined in any suit, to be tried in any other county, on good cause shown therefor, and on such terms, and under such rules and regulations as the said court should prescribe. It is argued that because the Judiciary Act (L. of 1847, p. 333, § 49) uses the
The motion, therefore, will not be denied upon the preliminary objection, but will be heard on its merits.
I have carefully read the numerous affidavits on the part of the defendant, and the affidavits in opposition, and am of opinion that there is no sufficient reason for changing the place of trial from Montgomery county, where it is laid, to the county of Washington.
The motion, therefore, must be denied, with ten dollars costs.