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Tracy v. Shannon

22 Abb. N. Cas. 136 Court N.Y.C.P. English

Delivered by Van Hoeson, J.

Contents

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p. 136
TRACY v. SHANNON.
N. Y. Common Pleas, Special Term;
December, 1888.

Headnote

a. District Oou/rt of N .Y. Oity ; remedy for judgment entered without service of process.] Where a judgment is rendered, in a district court of N. Y. City, against a person who alleges that he never was served with the summons in the action, his remedy is to appeal from the judgment, and satisfy the appellate court by affidavit that he was not served.
3. Same; remedy where time to appeal has elapsed.] Where such a person fails to ascertain that a judgment was rendered against him, until after the time to appeal has passed, he may stay the execution by injunction, and obtain a cancellation of the district •court judgment.
Motion to set aside judgment.
The defendant, Thomas Shannon, moved in the court of common pleas for an order to set aside a judgment, rendered in the ninth judicial district court of New York City, in favor of the plaintiff, Thomas Tracy, and docketed in the New York county clerk’s office.
The motion was made on the ground that there had been no service of summons.
Ernest H. Crosby, for the motion.
William G. McCrea, opposed.

The remedy of Mr. Shannon is to appeal upon the alleged error in fact (§ 3057).[1] The rem

* Code Civ. Pro. § 3057 (being part of chapter 17, which relates to appeals from justices’ courts) provides: Where an appeal is founded' ¡upon an error in fact in the proceedings, not affecting the merits of the ¡action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the ¡ex mination of witnesses, or in both methods. .

p. 137
■edy under the old practice was by writ of error coram, vobis. Where the return of the marshall falsely or untruly certifies that the summons was served upon the defendant and a judgment is rendered against him without his knowing that an action against him has been brought, he. must :appeal and satisfy the appellate court by affidavit that he' was not served (3 Wait's Law & Practice, 974, 984 ; Fitch v. Devlin, 15 Barb. 47 ; Waring v. McKinley, 62 Id. 612). If the defendant who was not served with •a summons should not ascertain that a judgment against him has been rendered in a justice’s court until the time to appeal from it has elapsed, he may, by injunction, ■stay the execution, and obtain a judgment for the cancellation of the justice’s judgment (Patterson v. Naehr, N. Y. Common Pleas Chambers, December, 1888).

The motion to set aside the judgment is denied, and the ■defendant is left to his remedy by appeal, or to his remedy in equity, if the facts should warrant it.

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