McDoel v. Cook

Headnote

lu a suit by attachment prosecuted against two persons as joint debtors, the justice has no right to proceed and render judgment where the return of the constable only shows a service of the attachment on one of the defendants, but is silent as to service on the other, and where the defect is not cured by an appearance.

Whether, in such a case, the justice should dismiss the proceeding or should issue a summons, (Siat. 1831, p. 404, § 38,) quere.

Cook v. McDoel, 3 Denio 317 , affirmed.

On error from the supreme court. On the 7th of Novem her, 184a, Prescott McDoel obtained from a justice of the peace of the county of Oneida an attachment against the goods of Anson G. Cook and James Pierce, returnable on the 10th day of the same, month. The constable who had the process made his return thereon, certifying that on the 7th of November he had attached certain goods and chattels of the defendants, describing them, and on the same day had made an inventory of the property, and served a copy of the attachment and of the inventory on the defendant Cook personally. The return was silent as to any service on the defendant Pierce. The defendant Cook appeared by his attorney, but Pierce did not appear. The attorney for Cook objected to the proceedings on the ground (among others) that the return of the constable was insufficient. The objection was overruled by the justice. The plaintiff then declared on a note signed “ Pierce Sr Cook,” and Cook pleaded the general issue. It was then proved that Cook executed the note declared upon, and the justice thereupon rendered judgment in the plaintiff’s favor for the amount, thereof against both defendants, noting in his docket on which of them personal service had been had. The common pleas of Oneida county, on

certiorari, the return to which stated the above matters, affirmed tne judgment of the justice. Cook & Pierce then brought error into the supreme court, where the judgments were reversed. (3 Genio, 317.) McDoel then brought error to this court.

The attachment being served personally on Cook alone, it was unnecessary that the constable should make any return in regard to Pierce ; no such return is required by the statute in case of proceedings against joint debtors. ( 2 R. 8 . 2d ed. 176-7, §§ 122-3.) (1.) Cook cannot complain that Pierce was not brought into court; for Cook was not made liable beyond the scope of his written obligation, and he made no objection before the justice that the constable had not made a return as to Pierce; nor has Pierce any. just cause of complaint, for he has the right to contest the plaintiff’s claim when the action shall be brought against him. (Eddy Hathaway v. O’Hara, 14 Wend. 221 ; Mervin & Goldsmith v. Kumbel, 23 id. 293 .) (2.) Where the proceedings are against joint debtors, there is no statute requiring service of any sort of process on more than one joint debtor, nor is there any statute requiring an effort to be made to serve process on more than one; and as the statute is silent upon this subject, no return as to the defendant not served can be required. Such return could be of no service to any one. (2 R. S. 2d ed. 176-7, §§ 122-3 ; id. 299 , §§ 1, 2, 3, 4.) (3.) The service of a summons under the fifteenth section of the revised statutes ( 2 R. 8 . 2d ed. 160) upon the defendant; the leaving of a copy of an attachment at the last place of abode of the defendant under the thirty-first section, ( 2 R. 8 . 2d ed. 163;) the provision in the thirty-sixth section of the non-imprisonment act, ( 2 R. 8 . 202, § 295.) that “ if the defendant can be found in the county, a copy of such attachment and inventory shall be served on him personally, instead of leaving the same at the place now prescribed in said article,” and the return of said officer, in addition to what is now required, should state specifically whether such copy was or was not personally served upon the defendant; and the authority given in the 38th section of the non-imprisonment act, (2 R. S. 2d ed. 203, § 297,) to issue a summons

against the defendant on the return of the attachment not served personally, obviously do not apply to one of two joint debtors not served with process. These statutes should be construed together, and a further summons is no more necessary in a case where an attachment is personally served on one oi two joint debtors, than it is where a summons, as the process, "s served on one only. The analogy between the two cases in practice should not be broken without a palpable reason for it. This position is fully supported by the form of execution prescribed, and the endorsement thereon, (2 R. S. 2d ed. 179, § 138,) which form of execution and endorsement apply equally to cases of proceedings by attachment as well as by summons without attachment