Van Pelt v. Boyer — 7 How. Pr. 325

Majority

p. 325

SUPREME COURT.

Van Pelt agt. Boyer.

Headnote

Where defendant was served with summons, and subsequently with an order of arrest- and copy complaint at the same time, but was discharged from the order because attending court as a witness; and no return of the service of the order or complaint having been made, and the defendant not having appeared, a judgment entered by plaintiff for want of an answer twenty days after the service of the summons, but within twenty days from the service of the complaint, held regular.

Westchester Special Term, May 1852.

Motion to set aside judgment for irregularity. The action was commenced on the 14th day of February 1852, by the service of a summons on the defendant personally. On the 26th February, the plaintiff having obtained an order to arrest the defendant and hold him to bail (it being a bailable action), placed the order of arrest and a copy of the complaint in the hands of the sheriff, to be served upon the defendant. The defendant was served with the order of arrest and copy complaint, but was discharged from the order on the ground that he was attending court as a witness at the time of his arrest. No return having been made by the sheriff to the plaintiff of the order of arrest, or service of the copy complaint, and the defendant not having given notice of appearance

p. 326

in the action, or demanded a copy of the complaint, the plaintiff twenty days after the service of the summons, entered judgment, as for want of an answer. Within twenty days after the service of the complaint, and after the plaintiff had entered judgment, the defendant procured an order, which was served on the plaintiff, extending the time to answer twenty days.

The plaintiff refused to vacate the judgment.

R. W. Van Pelt, Plaintiff in person.

J. W. Tompkins, for Defendant.

I do not think the defendant can_.be considered as having given notice of appearance under section 130 of the Code, and if he had not, he had not entitled himself either to a copy of the complaint or any further time to answer. The service of a copy of the complaint with the papers accompanying the order of arrest was the act of the plaintiff, and can not be considered as evidence of an intention to appear in the action on the part of the defendant. The judgment was regular, but as the defendant swears to merits, he may be let in on payment of f 10 costs of this motion, and the costs of entering and docketing the judgment and issuing and serving the execution.

The plaintiff must be at liberty to proceed upon his judgment and execution until sufficient money to satisfy the same comes into the hands of the sheriff, receiver, or other officer of the court, and then to be subject to the further order of the court.

Note.—On appeal to the general term, the decision of the special term was affirmed, with $10 costs, at Poughkeepsie, October 29, 1852.