Burghart v. Rice — 2 Denio 95

Majority

p. 95

John and Jacob Burghart vs. Rice.

Headnote

Joint debtors may be sued in a justice’s court by long summons, though one of them ho a non-resident of the county.

Error to the Onondaga common pleas. Rice sued John and Jacob Burghart before a justice of Onondaga county by summons, returnable seven days after the time when it was issued, which was personally served on both defendants. The plaintiff declared on a joint note made by the defendants." John .alone appeared and pleaded. On the trial it appeared that Jacob Burghart was a resident of Oswego county. The plaintiff recovered a judgment before the justice, which was affirmed by the common pleas.

J. R. Anderson, for the plaintiffs in error.

Noxon, Leavenworth & Comstock, for the defendant in error.

The only question is whether Jacob Burghart could be sued in this action by a long summons. 8f sued alone in Onondaga county, a short summons or attachment would be the only proper process, and any other would be void. (Thompson v. Sayre, 1 Denio, 175 .) In Harriott v. Van Cott, ( 5 Hill, 285 ,) it is intimated that such process as was issued in this case would probably be regular against joint debtors, where one was a non-resident. Mr. Cowen, in his Treatise (1 Cowen’s Tr. 462) expresses the opinion that a warrant, which when that treatise was published was the proper process against a non-resident, would not be regular without special cause shewn when the non-resident was sued jointly with resident defendants; and he likens it to the case of one of several defendants who, if he were a sole defendant, would be privileged against being sued in a particular manner, but when prosecuted with others, may be proceeded against in the ordinary way. This I think is the true rule.

Judgment affirmed.-