p. 280Supreme Court, First District ; Special Term,Headnote
Sebyioe' of Civil Peooess.—Election Day.Service of summons upon an elector on election day, is void.
Motion to set aside judgment and subsequent proceedings for irregularity.
The defendant was an elector residing in Saratoga County. The summons and complaint were served upon him by the sheriff of the county, on the .7th November, 1854; the day on which the general election of the State was held. No arrest was made, nor was any contemplated. Judgment was entered on failure to answer, on the 2d of December following. This judgment as well as the subsequent proceedings based upon it, were now sought to be set aside for irregularity in the service of the summons.
Stevens <& Jloxie, cmd J. C. Mott, for the motion,
cited 1 Rev. Stats. Chap. VI. Title 1, § 4.M. D. Townsend, opposed.
It was held by Vice-Chancellor McCoun in Wheeler a. Bartlett, (1 Edw. Ch. R. 823), that the section of the Revised Statutes above cited had reference only to process which caused duress.With regard to the service of civil process on election day, until 1842, the words of the statute were, that “ no "civil process shall be served, &c., on either of the days during which such election shall be held;” but in 1842, (Laws of 1842, p. 109), it was amended so as to read, “No declaration by which a suit shall be commenced, or any civil process, or proceedings in the nature of civil process, shall be served,” &e. The case of Wheeler a. Bartlett, (1 Edaw. Ch. R.,) to which the counsel for the plaintiff refers, was decided many years before the amendment. In that case,
p. 281the Vice-Chancellor says “ that the section (as it then stood) has reference to process which causes duress.” I doubt whether that section admitted of so limited an interpretation.In using so comprehensive a term as process, it may be well supposed that the legislature wished to provide not only against arrest or duress, but against any molestation that might interfere with the elector in performing the high and sacred duty which the elective franchise imposes. However this may be, the amendment of 1842 sets the question at rest. Commencing a suit by declaration caused no duress, and was equivalent to the present mode of commencing an action by summons, when there is no order of arrest.
The present case comes within the meaning of the amended section; and, as the summons was served on an elector on a ■day when -an election was held, the process and all the proceedings under it were void. It is unnecessary to consider the other question.
Judgment and subsequent proceedings set aside, with $10 costs of motion.