Stewart v. Smith — 17 Wend. 517

Majority

p. 291

Stewart vs. Smith.

Headnote

The judgment of a justice will be reversed when from the return to a certiorari it does not appear that the summons served upon the defendant set forth the time and place for his appearance.

So also the judgment will be reversed, if from the return it does not appear that the constable in his return of the service of the process, stated the time of its service.

Error from the Montgomery common pleas. Smith sued Stewart in a justice’s court and judgment was rendered in his favor. Stewart sued out a certiorari, to which the justice made a return, that on the 21st January, 1837, he issued a summons in favor of Smith against Stewart, returnable on the 27th January, which was returned personally served; that on the day of the return of the summons, the plaintiff appeared, but the defendant did not appear; that the plaintiff declared, and that the cause was then adjourned until the next day. That at the time of the adjournment the plaintiff again appeared, but the defendant did not; that the plaintiff produced 'testimony iu support of his declaration, and that judgment was rendered in his favor. It did not appear from the return of the justice, that the summons stated the place where the defendant was to appear; nor that the constable in the return made by him on the summons, stated the time of the service of the process. The common pleas affirmed the judgment of the justice. The defendant sued out a writ of error.

A. M'Farlan, for the plaintiff in error.

C. M’Vean, for the defendant in error.

By the Court,

The suit was by summons; the return of the justice does not set it out, nor does it set out the return to the summons, farther than that it was returned personally served. No day of sei vice is

p. 292

mentioned, whether one day or six days before the return day docs not appear. The statute is positive that the day of service shall be returned (2 R. S. 228 § 16). It is a regular return only that can give jurisdiction.

Again; the summons itself mentions no place of appearance, as the return stands (id. § 14); nor that the justice held his court at the place mentioned in the summons. As there was no appearance of the defendant, these things were essential to confer jurisdiction, and the omission of them in the return is fatal. We need not, therefore, notice the other points urged by the plaintiff in error.

Judgment reversed.