Lindsay v. Tansley — 44 N.Y. St. Rep. 653

Majority

p. 653

John Lindsay, Resp’t, v. Lute S. Tansley, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1892.)

Headnote

Justices’ court—Summons—Code Civ. Pro., § .2877 not jurisdictional..

An objection that a summons issued by a justice of the peace was issued more than twelve days before the return thereof must be made before the justice upon the return day, and cannot be raised for the first time on appeal.

Appeal by the defendant from a judgment of the county court-of Genesee county, entered on the 10th day of October, 1891,. affirming a judgment of a court of justice of the peace.

William M Prentice, for app’lt; H. B. Cone, for resp’t.

This action was brought upon a promissory-note executed by the defendant. The summons of the justice of the peace was properly served upon the defendant on the 26th day of June, 1891, and was returnable on the 6th day of July of that year. The defendant made default before the justice of the peace, and judgment was accordingly taken against him upon proper evidence. On appeal to the county court, the point was made for the first time for the counsel for the defendant, that inasmuch as-the return of the justice of the peace showed that the summons was issued on the 22d day of June, 1891, more than twelve days-before the return thereof, the justice had not jurisdiction to hear the case, and that, consequently, the judgment pronounced by Mm should be reversed.

Section 2877 of the Code of Civil Procedure, provides that the1 summons must be returnable at a time therein specified not less, than six days nor more than twelve days after the date when it was issued.

We are of the opinion that this direction of the Code is not jurisdictional, but that it relates to practice and procedure only, and that in order for a party to avail himself of an objection of tMs character, it is incumbent upon him to appear before the justice and to raise the question. Undoubtedly, had the defendant-so acted, and it had been made to appear to the justice as a matter of fact, that the summons was actually issued more than twelve days before the date, of its return, he would have dismissed tho case. In the return made by the justice to the county court, it appears that the summons was dated on the 22d day of June, 1891, and the justice, without having his attention called to the fact, certified that it was issued on that day. • The appellant’s counsel insists that such fact appearing in the return of the justice is conclusive, and that the defect is available upon appeal.

p. 654

In this we cannot concur with him. We think it is incompetent for the appellant by pointing out mere verbal defects in a record made by a justice in his return, to insist upon the reversal of the judgment when such defect, if it in fact existed, might have been obviated at the trial or shown to have been a mistake in fact. It was the duty of the defendant, in order to avail himself of any supposed irregularity of this kind, to appear and raise the question at the inception of the case.

It follows that the judgment appealed from should be affirmed.

Judgment of the county court of Genesee county appealed from, affirmed, with costs.

Dwight, P. J., and Lewis, J., concur. ■