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Clinton v. King

3 How. Pr. 55 Court N.Y. Sup. Ct. Decision date 1847-07-28 English

Delivered by Harris, Justice.

Contents

Majority

p. 55
Clinton & O’Donnel vs. King.

Headnote

In. an action of replevin, where the sheriff took the property described in the writ, and delivered it to the Plaintiff, without serving the Defendant with summons; held, that the Defendant had a right at once to'give notice of his appearance, and except to the bail.
It is no answer to a motion by Defendant for judgment of discontinuance in such an action, that he had never been served with summons, and therefore had no right to appear and except to the bail; he had a right at once to give notice of his appearance, in order that he might, if entitled thereto, procure a return of the property.
The Defendant moved for judgment of discontinuance in an action of replevin. The Defendant having appeared within the time prescribed by law, excepted to the sufficiency of the sureties taken by the sheriff,
p. 56
upon the receipt of the writ. The sureties had not justified, nor had any new bond been executed.
It appeared that the property described in the writ was taken hy the sheriff and delivered to the Plaintiff.
The Plaintiffs opposed the motion, on the ground that the Defendant was not served with a summons, and therefore insisted that he had no right to appear and except to the bail.
P. Cagger, for Deft.
S. P. Higgins, for Plffs.

The sheriff having proceeded so far in the execution of the writ of replevin, as to take the property and deliver it to the Plaintiffs, the Defendant was not bound to wait until he should be served with a summons before he should appear in the suit. He had a right at once to give notice of his appearance, in order that he might, if entitled thereto, procure a return of the property. It is no answer to the default of the Plaintiffs for not having their sureties justify or giving a new bond within the time allowed for that purpose, after notice of exception, that the sheriff had omitted to serve the Defendant with a summons at the commencement of the suit. The Defendant himself, after having appeared in the cause, would have no right to take the objection.

The motion is granted, unless within twenty days the Plaintiffs cause their sureties to justify or file a new bond, as provided by law in such cases, and pay the costs of this motion.