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Onderdonk v. Ranlett

3 Hill & Den. 323 Court N.Y. Sup. Ct. English

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p. 323
Onderdonk vs. Ranlett.

Headnote

A short summons in favor of a non-resident plaintiff maybe issued by any justice of the county, though he and the defendant do not reside in the same toum or in adjoining towns.
The security required of such plaintiff on commencing a suit by short summons in a case whore a set-off is allowable, should be for the payment of any sum that may be adjudged against him; security for costs merely is not sufficient.
But where a justice returned to a certiorari that the plaintiff gave satisfactory Security in writing, signed, cj-c., for costs, according to law ; held, sufficient to warrant the inference that the security corresponded with the requisitions of the statute, and was not restricted to costs merely.
If the defendant make no objection before the justice to the form of the security, he will be deemed to have waived all irregularity in this respect, and cannot therefore avail himself of it on certiorari.
A justice may acquire jurisdiction in respect to the parties, by consent; though otherwise, as to the subject matter.
Where a defendant’s conduct, on applying for a second adjournment before a justice, is such as to cast suspicion upon the bona fid.es of the application, and he refuses to state, either on oath or otherwise, what he expects to prove by his absent witnesses, the justice may refuse the adjournment.
Semble, that the defendant’s refusal, on a motion for a second adjournment, to disclose what he expects to prove by his absent witnesses, should not be regarded as sufficient cause for denying the application, except the case be one of well grounded suspicion. Per Nelson, C. 3.
■ 2 ustices of the peace have a discretion to exercise in granting and refusing adjournments ; and nothing short of a clear abuse of that discretion will be regarded as ground for interfering on certiorari. Per Nelson, C. J.
Where a defendant applies for a second adjournment on an affidavit which does not show that he expects to be able to procure the attendance of his witness at the adjourned day, the justice may, for this reason, overrule the application. Semble.
A justice’s judgment in favor of a plaintiff, which is subsequently reversed on certiorari upon technical grounds in no way involving the merits, is not a bar to ■a second action for the same cause.
Ample powers are possessed by justices of the peace to maintain order and protect themselves from insult, while engaged in the discharge of their official duties; and, in the due exercise of these powers, they may at all times rely on the countenance and favor of this court. Per Nelson, C. J.
A court of common pleas, before ordering an amended return to a certiorari, should examine the matters respecting which a further answer from the justice is sought; and should refuse the application in respect to whatever is irrelevant to the questions proper for review. Per Nelson, C, J.
p. 324
Error to the Queens C. P., where the judgment of a justice m favor of Ranlett against Onderdonk was affirmed on certiorari. The justice’s return presented the following facts : Ranlett appeared in person before the justice, made affidavit of his non-résidence &c., and gave “ satisfactory security” in writing signed by James Herriman, a resident of the county of Queens, “ for costs, according to law.” The justice thereupon issued a short summons against Onderdonk, and, on the return day, the parties appeared in person and by attorney. The plaintiff’s demand was for drawing a plan of the defendant’s house, and the declaration was in assumpsit for work, labor, &c. The defendant pleaded “ the non-jurisdiction of the justice, in that the plaintiff was a non-resident of the county, and the defendant lived in North Hempstead, and the justice lived in Jamaica, and that North Hempstead and Jamaica no where adjoined.” The justice decided that the allegations in the plea were not sufficient to show a want of jurisdiction. The defendant then objected that the proceedings of the plaintiff were irregular, alleging that the latter was not present when the suit was commenced. The justice informed the defendant of the steps which had been taken by the plaintiff; whereupon the defendant pleaded in bar a former suit before another justice in which the same demand had been litigated and a judgment rendered for the plaintiff. The plaintiff replied that the judgment in that suit had been reversed upon certiorari, “ on the ground of some technical irregularity of the justice.” The defendant admitted the truth of the replication; and, after argument by counsel, the justice decided that the former suit and judgment did not constitute a bar. The .defendant then pleaded the general issue, with notice that he should give in evidence the former recovery in bar of the action. He then asked to have the cause adjourned to a future day, to which the plaintiff consented ; and a venire was issued on the plaintiff’s application. The parties appeared on the adjourned day, and the venire was returned with the names of the jurors summoned. The defendant demanded a further adjournment
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on an affidavit in these words : [Title of the cause.] “ Queens county, ss. Horatio G. Onderdonk being duly sworn deposeth and saith, that William M. Thomas and James A. Coit are ma* terial witnesses to the defence of this deponent; and that he cannot safely proceed to trial without the testimony of said witnesses. Deponent further says, that he has used due diligence to obtain said witnesses, and that one of them is absent from this state, as deponent is informed and believes to be true, to wit, in the state of Georgia, and beyond the reach of a subpoena issued by any court in this state. Deponent further saith that, as he is informed and believes to be true, the other of said witnesses is not in this county.” [Signed and sworn to.] The plaintiff objected to the adjournment, and insisted that the defendant should make an oral statement on oath of the facts entitling him thereto. This the defendant declined doing, and also refused to state what facts he expected to prove by bis absent witnesses ; saying, he would rely upon the affidavit, and the £i court might act as outrageous as he pleased.” The justice told the defendant that the affidavit was insufficient, and refused to grant the adjournment. Soon after the constable commenced calling the jury the defendant remarked, that he wanted to prove by his absent witnesses that they were the men who built his house, and that neither of them ever saw the plan in question. The parties then proceeded to the trial of the cause. The plaintiff’s demand was clearly proved, and the jury found a verdict in favor of the plaintiff for |24,99 damages; whereupon the justice rendered judgment for that sum, with costs. The trial of the cause occupied a great length of time, and was much prolonged by the defendant’s constant interruptions of the plaintiff’s witnesses and counsel, by his insolent and contemptuous conduct towards the justice, and by the interposition on his part of many frivolous objections, accompanied by boisterous and insulting language. In the course of his summing up to the jury, also, he applied abusive epithets to the justice ; and, among other things, charged the justice, the plaintiff and bystanders, with wishing to injure
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him. After the defendant had sued out a certiorari and the justice had filed his return thereto, an application was made to the court of common pleas to compel an amended return. On this application Onderdonk presented some twenty-eight distinct points, and the common pleas ordered the justice to make return to all of them. Many of these were very remote in their bearing upon the case, and others had nothing whatever to do with it. Most of them, moreover, were so framed as not merely to direct the justice’s attention to the matters to be answered, but to wound his feelings by insinuations against his official integrity. After judgment of affirmance in the common pleas, Onderdonk sued out a writ of error,
P. Potter, for the plain tiffin error.
H> P> Allen, for the defendant in error.

The plea to the jurisdiction of the justice is sufficiently answered by the case of Hunter v. Burtis, ( 10 Wend. 358 .)

As to the other alleged irregularities in the commencement of the suit, none were specified at the time of making the objection, nor can we see that any existed, sufficiently distinct and certain to call for a reversal of the judgment. Where a suit is commenced in the name of a non-resident plaintiff by warrant or short summons, he is required to give security for the payment of any sum which may be adjudged against him in the suit. (2 R. S. 160, § 17, 2d ed. ; id. 201, § 291.) And as judgment may, in cases like the present, be rendered against him for the balance found due to the defendant, (id. 166, § 52,) the security should be broad enough to embrace all that the defendant may recover.[1] The justice states in his return

(a) (a) For the form of the security, see Cowen’s Tr. 469, 2d ed. Whether the security may be by a deposite of money with the justice, and if so, how much should be deposited, see id. p. 468.

p. 327
that the plaintiff (Ranlett) gave satisfactory security in writing, Sec., for costs, according to law. If we are to understand from this language that the security was confined to such costs as might be recovered against the plaintiff, it was unquestionably defective; but I think the return will admit of a broader construction, as it alleges, in substance, that the security was taken according to the statute. This view is strengthened by what occurred before the justice while the objection to the regularity of the plaintiff’s proceedings was under consideration. The defendant (Onderdonk) alleged that the plaintiff was not present when the suit was commenced ; but did not allude to any defect in the security. The justice informed the defendant of the steps which had been taken by the plaintiff, thus directing the defendant’s attention to the security given, and yet no specific objection was made to it. The inference to be derived from the defendant’s conduct under these circumstances' would seem to be, that he was satisfied the security was in due form. Beside, I apprehend that the omission to make objection at the time, operated as a 'waiver of the irregularity, if any existed. Consent will not give jurisdiction in respect to the subject matter of the suit, but it will, as to the person. (Day v. Wilber, 2 Caines, 134 ; Bloodgood v. Overseers &c. of Jamaica, 12 John. R. 285 ; Bronson v. Earl, 17 id. 63 ; Cowen’s Tr. 31, 2, 2d ed.) In Day v. Wilber the objection was taken on certiorari that the suit had been commenced by warrant, instead of summons ; but the irregularity was considered to have been waived by reason of the omission to make the objection before the joining of issue. So here, the summons was irregular without the security ; but it was entirely competent for the defendant to waive the irregularity, and go to trial on the merits as upon the joining of issue without process. (2 R. S, 160, § 11,2d. ed.)

The justice was right in refusing the adjournment. The de • fendant’s conduct was such as fairly to cast suspicion upon the bonafides of the application, and to justify the discretion exercised by the magistrate. (See Smith v. Fenton, 2 Cowen, 425.)

p. 328
The defendant moreover refused to disclose what he expected to prove by the absent witnesses ; and this has sometimes been regarded as sufficient to justify a refusal to adjourn. (Brill v. Lord, 14 John. Rep. 341 .) But I think the practice should be confined to cases of well grounded suspicion. (Cowen’s Tr. 846, 2d ed.) The affidavit on which the application for an adjournment was founded, is, I think, defective, in not stating that the defendant expected to be able to procure the attendance of his witnesses at the day to which he desired to have the cause adjourned. This is usually required on similar applications in courts of record. (The People v. Vermilyea, 7 Cowen, 369.) There is another answer to the allegation of error in the point under consideration, and that is, that justices have a discretion to exercise in granting and refusing adjournments, and that nothing short of a clear abuse of that discretion will be regarded as error. (Pease v. Gleason, 8 John. Rep. 409 .) I am not at all satisfied that any such abuse is properly chargeable in this case.

The plea of a former recovery was properly overruled by the justice ; as it was admitted by the defendant that the judgment had been reversed upon technical grounds, in no way involving the merits of the matter in controversy. (Close v. Stuart, 4 Wend. 95 .)

Many other points are presented by the plaintinff in error, but they are too untenable to require notice. Onderdonk was guilty of great irregularity and indecorum in conducting the proceedings before the magistrate. None of the numerous cases originating in justices’ courts which have come before us for review within my experience, have presented any thing like the violation of respect and orderly conduct to be habitually observed in judicial proceedings, as that exhibited on the trial of this cause. The powers of magistrates are ample to repress and punish such behavior in any stage of the cause, whether proceeding from a party, his counsel, or a bystander ; (2 R. S. 199, § 274, 275, 2d ed. ;) and self-respect, as well as a due regard for the proper administra

p. 329
tion of justice, imperiously demand that they should be used, and order enforced with a firm and steady hand. Justices may at all times rely upon the countenance and favor of this court in the due Command and vigorous enforcement of good order while conducting their proceedings; and, as all necessary powers have been conferred upon them for this purpose, they should know and feel that they alone are justly responsible for its observance. We cannot commend the forbearance of the magistrate in the instance before us, and would have been better satisfied if he had repressed the disorderly behavior of the party at once, when admonition failed, by fine, or commitment, or both.

We cannot avoid also taking notice of the rule in the common pleas compelling the justice to amend his return. I am satisfied the attention of the court could not have been particularly called to the numerous points to which it seems they required an additional answer. There are some twenty-eight in all i many of them in no way bearing materially upon the case, and others trifling, idle, and disrespectful to the magistrate, evincing a most vexatious, if not vindictive spirit towards him, wholly unbecoming a judicial proceeding. The court should have examined the several matters in respect to which an amended return was called for, and struck out every part not material and important to the questions to be presented for review.

Judgment affirmed.

Cases cited