Garlock v. Ontario Bank — 1 Wend. 288

Majority

p. 288

Garlock and others ads. Ontario Bank.

Headnote

Ths return of process to a wrong officer, is not such an irregularity for which proceedings will be set aside.

Motion to set aside proceedings for irregularity. The irregularity shewn was, that the sheriff of Montgomery had returned the capias in this cause, served by him, to the clerk’s office at Utica, whereas he ought to have returned it to the clerk’s office at Albany,' conformably to the directions of the law of the 14th April, 1820. (Statutes, ml. 5, b. 200.) The default was entered on the 26th August, and no inquiries made at the Albany clerk’s office until the 9th September.

Jl. Stewart, for defendant.

W. King, for plaintiff.

By the Court,

The statute is directory to the sheriff, as to where process shall be returned, but it does not render process void if erroneously returned. On the contrary, the act provides that the sheriff may be proceeded against for neglect in making returns, notwithstanding returns made to any other office than that directed. The convenience of plaintiffs and not of defendants was contemplated, which, together with making an equal distribution of fees to the clerks of the court, was (he object of the legislature. Jt does not appear that the defendant was misled by the return of the writ to Utica instead of Albany, as the default was entered previous to his making inquiries at the clerk’s office at the latter place; and as no merits are shewn, the motion is denied, with costs.