delivered the opinion of the court:
Plaintiff in error, in a suit before a justice of the peace, recovered a judgment by default against defendant in error. Thereafter the latter prosecuted a suit against the former to еnjoin the collection of such judgment, on the ground that it was void. The court, upon trial, so found, entered a decree accordingly, and enjoined the collection of the judgment. This suit is prosecuted to reverse that judgment.
The complaint, inter alia, alleges that defendant, in the suit before the justice of the peace, never personally
The proof shows that what purported to be a summons in the statutory form was served upon the defendant, 'within the time and manner prescribed by the statute. The name of the justice of the peace, however, appearing upon the summons was not written by that official, nor did he have any recollection whatever of the particular summons or suit. He testified that his name upon the summons was in the handwriting of a person to whom he referred as his clerk, and whom he had authorized generally to sign summonses, but did not particularly authorize the signing of the one in question.
To authorize a justice of the peace to render a judgment by default, it is essential, among other things, thаt valid process be served upon the defendant and returned in the mode prescribed by law. Without such service the justice of the peace has no jurisdiction of the person of the dеfendant, and a. judgment rendered under such circumstances is void, and can be questioned at any time, in any proceeding, direct or collateral. The rule is elementary and is an essential sаfeguard to the administration of justice.—Yentzer v. Thayer,
' A paper, though In form a summons, is not such, unless signed by the officer or person in whom the law has vested authority to issue such process.—Russell et al v. Craig,
As said in Hanson v. Rowe, 26 N. H. 327, 328, in considering process similar to the one hеre in question:
The power to issue a summons, writ, or process under the legislative act pertaining tо justices of the peace, is vested exclusively in such magistrate. Sec. 372!, R. S. It is, therefore, an official act, and can not be delegated to another in the absence of express legislative authority. As'a general rule, when one has a bare authority, or power, from another, to do an act, he must execute it himself, and can not delegate it to- another. Story on Agency, section 13. This is especially true where the exercise of the power involves the exercise of any discretion. ' Except as otherwise' provided in the act, every suit before such magistrate shall be commenced by summons, the form of which is prescribed, and requires the justice’s signature thereto. He is likewise required to specify therein a certain place, dаy and hour, for the trial, not less than five nor more than fifteen days from the date of such summons, at which time and place the defendant is to appear, and the manner of service and return оf the summons are particularly pointed out.
Moreover, like powers are vested in, and similar duties are required to be performed by, justices of the peace in the prosecution or investigation of certain criminal offenses. So, if the power to attach the magistrate’s ñamé'to a summons could be delegated by general authority to' another, such person cоuld likewise be authorized to issue' and authenticate warrants of arrest based upon complaints charging violations of the criminal law. The power cannot be safely thus extended. He that performs
We do not consider that Loughren v. Bonniwell,
“There is no reason why an original notice, which in this state is not a writ or process issuing out of court, should be signed by the person authorized, in his own proper hand-writing. The instrument is nothing but a notice, which may be signed, not only by a justice, but by the party or his attorney, without the knowledge or consent of the justice, and in either event it is sufficient if properly subscribed.”
And further in the same opinion, on page 521, in holding that if the justice signed the notice in blаnk and gave it to another to be filled out, which was done before it was served, that the notice was not invalid, it is said:
“If this notice were a summons, a writ, or a precept issued by the justice, we should be inclined to hold it insufficient to give the justice jurisdiction. But it is not.”
Achorn v. Matthews,
Without approving or disapproving those decisions, as applied tо official acts of the character here under consideration, it is sufficient to say, that the facts of this case do not bring it within the rule there recognized. The attorney representing plaintiff in error, testified, that he, in the office of the justice of the peace, filled in the blank spaces in the printed form of summons; that the justice of the peace, the alleged “clerk,” and the constable were then sitting behind the “counter;” that he handed the summons to “them” saying, “I want you to sign this;” that the “clerk” said, ‘.‘All right,” and took the summons and signed the name of the justice of the peace thereto. There is not the slightest "evidence that the justice heard any of this conversation, or had any knowledge whatever of the nature of the iristrüment handed to the “clerk,”, or whose ■name thе “clerk” signed thereto. Under these circumstances, it can not be said that the act was done by direction of the justice of the peace, in his presence, and under his control.
Plaintiff in еrror contends, that the court erred in denying her motion for judgment, based.upon the ground “that the defendant in error has been guilty of laches.” We find no such motion in the record. Nor is there an allegаtion of laches in the pleadings, and the only mention thereof in the record is an objection by plaintiff in error at the commencement of the trial, to the introduction of any evidencе, “for the" further reason that the complaint shows that the plaintiff has been guilty of laches,” etc. But should we assume that laches would be available as a defense under the facts of this case, and as sought here to be interposed, nevertheless, we think .the plaintiff pleaded, and the evidence established, a sufficient
Upon'other questions presented, we do not deem it nеcessary to express our views at length. Some of them pertain to matters not presented to the court below, while others are upon matters clearly within the discretion: of the court, and the judgment, in any event, must be, and accordingly is, affirmed. . Judgment affirmed.