Ross v. Konor — 17 N.Y. St. Rep. 465

Majority

p. 465

George B. Ross, Resp’t, v. Valentine Konor, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 2, 1888.)

Headnote

1. Jurisdiction—Want op jurisdiction op the person—How cubed— Right to appear specially.

Though the complaint does not set forth the facts giving the court jurisdiction over the person of the defendant, yet, if he appears and answers, such appearance is a waiver of any such defect. He has a right to appear specially to raise this preliminary jurisdictional question, and having failed to do so, by appearing generally he loses this right.

:3. Practice—On appeal.

The general term will refuse to hear cases on appeal which do not show that they have been settled by the judge who tried them.

Appeal by the defendant from a judgment entered in favor of the plaintiff in the county court of Montgomery ■county.

Maxwell Bros., for app’lt; William B. Dunlap, for resp’t.

This action was commenced in the county

court of Montgomery county by the service of a summons. No copy of the complaint accompanied it. The defendant, by his attorneys, appeared generally in the action, and a copy of the complaint was served, and an answer was interposed, wherein the defendant, first, denied each and every allegation of the complaint; second, alleged, by way of counterclaim, “that within six years last past, at plaintiff’s request, defendant performed services and furnished merchandise for benefit of said plaintiff to the value of one hundred and twenty-five dollars. That a demand has been made upon said plaintiff for payment of same, but that no part thereof has ever been paid.” A copy of the summons, complaint, answer and reply are hereinafter :set out. That the county court possessed jurisdiction of the subject-matter is not questioned by the defendant. The ■only contention of the defendant, so far as the question of jurisdiction is involved, is that the complaint did not allege that the defendant was, at the time of the commencement of the action, a resident of the county of Montgomery, and, therefore, the county court did not acquire jurisdiction of his person.

Bo motion was made to set aside the summons upon that

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ground. The defendant did not demur to the complaint,, upon that ground, which he could have done. Code of Civ. Pro., § 487, subd. 2. Nor did he allege any such ground of defense in his answer. The jurisdiction of the court was in no manner questioned by the defendant until the trial. We conclude that the defendant submitted to such jurisdiction, and waived all objection thereto, and, as upon the trial, he was shown, by competent evidence, to have been an actual resident of that county at the commencement of the action, the county court committed no error in entertaining the action. McCormicks. The Penn. Cent. R. R. Co., 49 N.Y., 303 ; Dake v. Miller, 15 Hun, 356 ; Holbrook v. Baker, 16 id., 176; Potter v. Neal, 62 How., 158 ; affirmed by this court, 31 Hun, 86 ; Cleveland v. Hatch, 25 id., 308; Davis v. Packard,. 6 Wend., 327 . In McIntyre v. Carriere ( 17 Hun, 65 ), the case of McDonald v. Trusedail, which was decided in this court, is referred to, wherein the action was commenced by the service of a summons, without the complaint, as in the present action. And this court held that jurisdiction was acquired by the service of the summons and that the county court was justified in amending the complaint by reducing the claim of damages from $5,000 to $1,000. The decision in that case involved a much greater stretch of authority than is required to sustain the proceeding in the present action. We are referred, by appellant’s counsel, to Gilbert v York ( 41 Hun, 595 ). In that case the defendant demurred to the complaint, thus raising the question of jurisdiction, at the first opportunity. Again the complaint in that case failed to show jurisdiction of the subject matter, as well as of the person of the defendant. It will be seen that prominence was given to that circumstance in deciding the case referred to. In the case at bar, jurisdiction of the subject matter is conceded which, we think, distinguishes it from the case-cited. The distinction referred to seems to be recognized in Wheelock v. Lee ( 74 N. Y., 495 ).

Judge Rapallo says, at page 498, “In a case in which the court had jurisdiction of the cause on some of the other grounds, as for instance, where the cause of action arose within the city of Brooklyn, the general rule would apply, that a general appearance cures any defect in the service of process to bring the defendant into court, and even the total absence of any service.” Reference to the complaint-herein shows that the cause of action arose in the county of Montgomery, and that the claim of damages -is within the jurisdiction of the county court. We also refer to the-opinion in Deborah Dwyer v. Rathbone, Bard & Company, which was argued in this court at the May term, 1888. See- ante, p.443. We conclude that the court properly excluded evidence in support of the defendant’s pretended counterclaim, as it affirmatively appeared that the articles were not claimed to have been furnished within the period

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limited by the defendant’s counter-claim, and no motion was made to amend the pleading.

The judgment must be affirmed, with costs.

Ingalls, J., concurs.

County Court—Trial Desired in Montgomery County.

George B. Ross agst. Valentine Konor.

To the above named defendants:

You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the J plaintiff’s attorney, within twenty days after the service of this summons, exclusive of the day of service, and in case of your failure to appear, or answer, judgment will be taken against you by default, for the relief demanded in the complaint.

Dated, March 21, 1887.

W. B. Dunlap,

Plaintiff's Attorney.

Office and Post-office Address, 31 East Main street, Amsterdam, V. Y.

County Court—Montgomery County.

George B. Ross, Plaintiff. 1 agst. ' }- Valentine Konor, Defendant.

Plaintiff complains of the defendant, and alleges:

First. That on or about the month of March, 1878, plaint-tiff and defendant entered into a contract or agreement whereby defendant contracted and agreed to work the farm of plaintiff, in the town of Amsterdam, K. Y., for the term of five years from April 1, 1878, on the following terms and conditions, to wit: Defendant was to do all the work on said farm, and to furnish or pay for one-half of all stock, implements, seed, grain and grass seed to be used on said farm; the plaintiff was to furnish the other half, or pay for same* if furnished by the defendant, and the proceeds of the farm to be divided equally. '

Second. That under and by virtue of said contract and agreement, the defendant entered upon and occupied said farm from April 1, 1878, to April 1, 1883.

Third. That during said five years the plaintiff and defendant each furnished for use on said farm a large number of articles and property for the use and for the benefit of the other party.

Fourth. That on the 6th day of April, 1883, the plaintiff and defendant settled and compromised their claims against

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each other, and the defendant then and there promised and agreed to pay the plaintiff in full settlements of their affairs, and, as a compromise of their differences, the sum of fifty dollars.

Fifth. That on said 6th day of April, 1883, the plaintiff sold and delivered to the defendant one-half part of one cow and one pig, for which defendant promised and agreed to pay plaintiff the sum of thirty dollars. That no part of said amount has been paid. Whereof plaintiff demands judgment against the defendant for eighty dollars, with interest thereon from April 6, 1883, besides costs.

W. B. DUNLAP,

Plaintiff’s Attorney.

Office and post-office address, 31 East Main street; Amsterdam, N. Y.

County Court.

George B. Boss agst.

Valentine Honor.

Defendant above named answering the complaint of the plaintiff herein:

1. Denies each and every allegation in the complaint contained.

2. Alleges for a counterclaim to said complaint, that within six years last past at plaintiff’s request, defendant performed services and furnished merchandise for benefit of said plaintiff to the value of $125. That a demand has been made upon said plaintiff for payment of the same, but that no part thereof has ever been paid.

Wherefore defendant asks that the complaint herein'be dismissed with costs; and that defendant have judgment against said plaintiff for $125 and costs.

MAXWELL BBOTHERS,

Defendant’s Attorneys.

County Court—Montgomery County.

" George B. Boss, :

agst.

The plaintiff, for reply to the alleged counterclaim, set forth in the defendant’s answer herein, denies each and every allegation therein contained, and denies that he is indebted to the defendant in any sum whatever.

Wherefore plaintiff demands judgment, as in the complaint he has heretofore demanded.

W. H. DUNLAP,

Attorney for Plaintiff.

p. 469

Learned, P. J.—There is another objection to a reversal of this case. The case and exceptions are not signed or ordered to be filed. See Rule 35, Code Civ. Proc., 997.

We have several times refused to hear cases which did not show that they had been settled by the judge who tried them.

This appeal was submitted without argument, and therefore this defect was not discovered during the term.

It is the right of the judge who tried the case to determine what took place, and this right should be preserved to him.