Myers v. Overton — 2 Abb. Pr. 344

Majority

p. 344

MYERS a. OVERTON.

New York Common Pleas ; General Term,

November, 1855.

Headnote

Sumhons.-SERVICE BY PlAINTIEF.

Where a defendant is served with process by the plaintiff, personally, he must take advantage of the irregularity by moving to set aside the proceedings before judgment, otherwise his motion will be too late.

Appeal from an order of the special term, denying a motion to vacate judgment and subsequent proceedings for irregularity.

The affidavit of the defendant on which the motion was made, stated that he was served with the summons and complaint by the plaintiff himself; that judgment had been rendered, and execution issued and levied, &c. The defendant had not appeared in the action. The proof of service incorporated in the judgment roll, was the affidavit of the plaintiff himself. The motion wTas denied at special term, and the defendant now appealed.

Thomas Partington, for appellant.

I. The court never acquired jurisdiction of the defendant. Section 127 of the

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Code provides that all civil actions shall be commenced by the service of a summons. Section 133 provides that “ the summons may be served by the sheriff, * * * or by any other person not a party to the action.” And “ may” in such a case means “ must.” (Miner v. The Mechanic’s Bank of Alexandria, 1 Pet., 64 ; Rex v. Barlow, 2 Salk, 609; Blackwell’s Case, 1 Vern., 153 <& n. ; The Mayor v. Furze, 3 Pill, 612). This section, therefore, prohibits the service of a summons by a party; and such service if made is a nullity. It is not the pi-oof of service merely that is defective, but the service itself. And although service by the plaintiff were proved by the affidavit of a third person, the judgment would have been equally defective.

II. The j udgment is also defective in that no proof of the personal service of the summons and complaint was filed in the judgment roll, as required by section 274 and 281.

¿7. N. Potter, for respondent.

I. To allow one so directly interested as the plaintiff to prove service of the process which gives the court jurisdiction over the defendant, would not be proper; but this seems to be the only reason why service made by the plaintiff should not be as good as any other. Until this argument I never heard it suggested that if service made by plaintiff could be fully proved by a bystander, it was not good service. Such service would afford the same notice to the defendant and the proof would be as disinterested, as if the service were made by the third person himself.

II. If the service was irregular the defendant’s motion should have been made forthwith. It was tco late to make it after judgment.

III. The defect in the proof of service was supplied in the defendant’s affidavit upon the motion ; from which it appears that he was served precisely as the plaintiff states in his affidavit of service.

The summons and complaint in this cause were served by the plaintiff upon the defendant. The defendant did not appear therein, and a judgment by default was

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entered against him on an affidavit of service made by the plaintiff on January 15, 1855.

The defendant moved to set aside the judgment on an affidavit in which he admitted the service of the papers, and upon the ground that the plaintiff could not serve the process. The motion was denied and the defendant now appeals to the general term.

The defendant contends that the court had no jurisdiction in consequence of the defective service, and, therefore, the judgment is void.

If this view is correct, the appeal should be sustained. I do not consider the law so to be. This court had jurisdiction both of the subject matter and the person, and the mode of service has nothing to do with the question of jurisdiction, where the proceedings are in a court of general jurisdiction. The irregularity arises not from the want of service, but from the mode of making it. In such a case, a defendant should appear and make the objection and move to set aside the proceedings. If he neglect to do so, he is to be deemed to have waived the objection. We so held in regard to an irregularity in the Marine Court. (Coit v. Messerve, July, 1855 ; see also Barnes v. Harris, 4 Comst., 374).

I see no reason to change the views I entertained when the motion was made, and as the defendant’s motion is solely on the ground^of irregularity, he was not entitled to any relief for that cause.

The order appealed from should be affirmed.^[1]

* The defendant Overton refusing to pay the judgment recovered against him, was, in the usual course, brought before Judge Woodruff on an attachment issued in proceedings supplementary to execution. Kefusing to answer the interrogatories propounded to him, he was committed for contempt, December 6, 1855. Being brought before Mr. Justice Dean, December IT, on habeas corpus, he was remanded to custody ; the justice holding the detention lawful. He was afterwards brought before Mr. Justice Whiting, who held that the matters decided by Dean, J. were res adjudícala, and remanded the prisoner.