Majority
p. 186Dowd vs. Stall.
Headnote
Prior to the act of April 25th, 1840, (Sess. L. of 1840, p‘\ 125,) a person residing out of the state could not be sued in a justice’s court by short summons, but only by warrant.Whether,fsince the act above referred to, there be any process by which a suit can be commenced in a justice’s court against a non-resident of the state, on a de. • mand arising upon contract, quere.
Error to the Dutchess C. P. Stall sued Dowd, in October, 1838, before a justice of the peace, for goods sold and delivered. He made affidavit before the justice that Dowd was justly indebted to him, and resided out of the state. A summons was issued on the 15th, returnable the 18th of October, 1838, and was served the day it issued. The plaintiff appeared, but the defendant did not appear. The declaration was for goods sold and delivered, and after hearing evidence the justice rendered judgment for the plaintiff. On certiorari the C. P. affirmed the judgment; and the defendant sued out a writ of error.
W. Reynolds, for the plaintiff in error.
W. Eno, for the defendant in error.
The revised statutes provide, that “ no person shall be proceeded against by summons out of
p. 187
the county in which he resides.” (2 R. S. 227, § 13.) The first process is a warrant. (§ 17.) The rule was altered by the non-imprisonment act of 1831, and a short summons was substituted for the warrant. But the provision did not extend to persons residing out of the state. (Stat. of 1831, p. 396, § 1, 2, and p. 403, § 30, 31, 33.) Persons residing in the state, but in a different county from the justice, must be proceeded against by short summons. But the act of 1831 left the revised statutes in full force as to persons residing out of the state; and down to 1840, (Stat. of 1840, p. 120, ch. 165,) they could only be proceeded against by warrant. This suit was brought in 1838, and as the defendant was not a resident of the state, the justice acquired no jurisdiction. In Hoose v. Sherrill, ( 16 Wend. 33 ,) it did not appear that the person sued was a non-resident; and besides, that was an attempt to charge the justice as a trespasser, and courts are strongly disposed to protect public officers where they have fallen into honest error. Here, the only question is whether the judgment is erroneous, and about that question there can be no doubt.
It is difficult to tell how a resident of another state can now be sued in a justice’s court. The act of 1830 forbids that he should be sued by summons, and the act of 1840 virtually forbids his being sued by warrant. But it will be time enough to consider that question when it arises. When this suit was brought the defendant might and should have been sued by warrant.
Judgment reversed.
Cases cited
- Hoose v. Sherrill 16 Wend. 33 p. 187