Majority
p. 285Harriott vs. Van Cott. said the justice had jurisdiction to issue a long summons as the first process for the commencement of a suit, and although not the appropriate process in this particular case, the justice acquired jurisdiction, and
Headnote
SeTnble, that joint debtors may be sued in a justice’s court by long summons, though one of them be a non-resident of the county.Where, however, a suit was commenced, by long summons in the marine court of the city of New-York, against the maker and endorser of a note, one of whom resided m the city and the other in an adjacent county, and the plaintiff took judgment against the latter only, he having been served with the summons more than six days before its return, but not appearing to defend: Held, that the judgment was void, and that the party at whose suit it was obtained could not justify a seizure of goods under the execution.
But in such case the judgment will protect the justice who issued the summons. Semble.
Error to the New-York C. P. Van Cott sued Harriott in the court below in trespass da bonis, and the case was this: Harriott brought an action in the marine court of the city of New-York against one Bailey as the maker and Van Cott as the endorser of a promissory note. The suit was commenced by long summons, which was served on Van Cott more than six days before the return day, and on Bailey less than six days before the return day. Van Cott resided in the county of Kings, and Bailey in the city of New-York. As the summons had not been served upon the latter in due time, Harriott discontinued the action as to him, and took judgment against Van Cott, who did not appear. An execution on the judgment was levied upon Van Cott’s goods, and for that taking he brought this action of trespass. The C. P. decided that the marine court did not acquire jurisdiction, for the reason that Van Cott, being a nonresident, should have been sued by short summons, and consequently that trespass would lie against Harriott. A verdict and judgment having passed for Van Cott, Harriott brought error.
N. B. Blunt, for the plaintiff in error,
p. 286trespass would not lie. The question was decided in Hoose v. Sherrill, ( 16 Wend. 35 .)
That was an action against the justice; but here the plaintiff in the marine court is sued. He is not protected by the judgment if the process was irregular and the defendant did not appear.
Blunt then said, the justice acquired jurisdiction, and the judgment was valid, for the reason that Van Cott was sued with Bailey, who, as a resident of New-York, was liable to be proceeded against there by long summons. (1 Cowen’s Treat. 462; 3 Chit. Gen. Prac. 259.)
That doctrine may perhaps be maintained where the suit is against joint debtors. But here the suit was against the maker and the endorser of a promissory note, who might have been sued separately.
And without hearing A. L. Jordan, who was for the defendant in error,
Judgment affirmed.