8 How. Pr. 278 | N.Y. Sup. Ct. | 1853
By the Code of 1848, it was required that a copy of the complaint should be served with the summons. The complaint was required to specify the name of the court,
By the amendment of 1849, it was declared that a copy of the complaint need not be served with the summons, but, in such case, it was required that the summons should state where the complaint would be filed. Then, if the summons contained nothing more than what was prescribed, the defendant, if he would know in what court he had been sued, might be obliged to demand a copy of the complaint. If he did this within the time limited, the plaintiff was bound to serve him with such copy, and in that he would learn the name of the court, and the place of trial. This was, undoubtedly, the mode of proceeding intended by the framers of the Code, and the Legislature who adopted the amendments.
But in Walker agt. Hubbard, (4 Howard Pr. R. 154,) a summons was set aside on the mere ground that it did not name the court in which the suit was brought; and that too, although a complaint had been subsequently served, in which it was conceded, the court was sufficiently named. “ It seems reasonable,” said the learned judge by whom the motion was heard, “ as well as analogous to all former practice, that the defendant should know in what court he is sued.” With undissembled respect for the learned judge, I must be allowed to say that the decision was scarcely warranted by the case. I agree that the defendant should know in what court he is sued.” For this the Legislature had provided. If he could not find out it was his own fault. It was hardly allowable to add another item to the requisites of a summons, because the judge preferred, what he deemed a better mode of proceeding.
Following the decision in Walker agt. Hubbard, my brother Parker, in James agt. Kirkpatrick, (5 Howard Pr. R., 241,) set aside a judgment upon default, because no court was mentioned in the summons. “ The defendant,” he says, “ had no knowledge whether he was sued in this court, or in the county
In Dix agt. Palmer, (5 Howard Pr. R., 233,) Mr. Justice Gridley also felt inclined to follow the decision in Walker agt. Hubbard. He was only prevented by a notice of appearance which had waived the irregularity. The allusion in that case to the paternity of the form of summons was not entirely just. It is true it had been prepared by the Commissioners, but it was in connexion with the Code of 1848, and, if the form had been rendered inappropriate by the amendments of 1849, it was no fault of the Commissioners. Fiat justitia. I am still of opinion that the form of summons which has thus been condemned is all that the provisions of the Code, or the necessity of the case requires. But assuming that by these decisions a new requisite has been added, there can be no reason for extending its application beyond a summons served without a complaint. A defendant certainly should not be heard to complain that he is not informed as to the court in which he is sued, when he has in his hands a document in which that information is distinctly given.
The money for which this action is brought was received by the defendant as an attorney, and in the course of his employment as such attorney. The action is founded, not so much upon a breach of contract, as the violation of professional duty. The defendant’s counsel insists that though this be so, yet as the defendant was an attorney of another State, this court should not take cognizance of the relation in which he stood to the plaintiff. But I do not understand that the law under which the arrest was made, is to be thus restricted in its application. The obvious intention of the Legislature was, that any attorney, whether of this, or any other State, who should withhold from
