Maples v. Mackey , 22 N.Y. Sup. Ct. 533 ( 1878 )

Learned, P. J.:

This is a proceeding, under section 375 of the Code, to enforce . against the defendant Mackey-a judgment recovered by the plain- • tiff in form against both defendants, Mackey and Angelí, upon a joint liability. Mackey was not served with process in the original action. Mackey set up several defenses to this proceeding, and thé cause was tried before the court without a jury. The court rendered a decision in favor of the defendant, and the plaintiff appeals.

The court decided that the judgment against Angelí, the other defendant, was void. The only question before us is as to the, correctness of that decision. The facts bearing on that question are: That the plaintiff, on or before August 9, 1858, issued a summons against both defendants, upon which the defendant Angelí indorsed the following admission: “I admit due personal service of a copy of the within summons; Aug. 9, 1858. E. D. Angelí.” On filing this proof, and no other, of service; an unverified complaint; the draft on which the action was brought; an affidavit of no answer, etc., the clerk entered a judgment in form against both defendants, on the 31st of August, 1858. The court held the judgment void, because the admission of service did not show the place where it was served.

The defendant Mackey insists that the judgment was void for several defects in the admission of service.

First. Because it is the admission of the service of a copy of the summons instead of an admission of the service of the summons. We do not think that this was a matter of any consequence. The admission was indorsed on the summons •— the original summons, if there was an original as distinct from a copy; and because a copy is handed to the party served, it is not unusual to speak of serving him with a copy. The language is not strictly accurate; but the meaning is plain. So is this admission.

Second. Because the time of service is not expressed. But the time is expressed sufficiently. The defendant admits that the personal service was made the 9 th of August, 1858. The object of expressing the time is to show when the plaintiff will be entitled to judgment. It would be hypercritical to say that the day mentioned is the date of the admission, and not of the service.

Third. Because there was no proof of the genuineness of the signature of Angelí. This was not expressly required by the Code. ■ True, the court cannot' take j udicial notice of the signatures of • parties; and it was a very proper practice, even under the old Code, to verify signatures in such cases by affidavit. But, as a matter of fact proved on the trial, this was Angell’s signature. We cannot say that the judgment was void for want of a proof which was not required by the Code.

Fourth. Because the admission does not state that a copy was delivered to the defendant. It is sufficient that it admits due and personal service. That admits all which is necessary to constitute such service.

Fifth. Because it does not state the place of service. This is the ground relied upon by the learned justice who tried the case.

' Now, we must notice that this is a judgment of the highest court of record having original jurisdiction. The argument of the defendant’s counsel seems to' treat it as a judgment of the clerk ' of Tioga county. But that clerk is only the officer of the court, and the judgment is rendered not by him, but by the court.

Is there any question that the defendant Angelí was in fact properly served ? It is stated he was a witness on the present trial; and it is not pretended that he denied such service. The judgment-roll is not before us (as no case was made;) but if it followed the usual form it recited service of the summons on Angelí. And it will be remembered that, before the Code, the judgment-roll contained no proof of the service of process on a defendant. The only evidence of jurisdiction of the person contained in the roll'was the fictitious statement of the defendant’s actual appearance in court.

The defect complained of is an irregularity which the court would have permitted the plaintiff to amend on motion; and it did not render the judgment void. If an execution had been issued on it and property sold by virtue thereof, the purchaser would have taken a good title. There are many cases of similar irregularities which have been held not to affect the validity of the judgment. White v. Bogart, decided by this department November, 1877, was closely analogous to the present case. (See, also, Jones v. U. S. Slate Co., 16 How., 129; Farmers’ Loan and Trust Co. v. Dickson, 9 Abb., 61; Cooper v. Shaver, 41 Barb., 157; Peck v. Richardson, 16 S. C. N. Y. [9 Hun], 567). Our statute, often called the statute of jeofails, is sufficient to authorize the amendment, if it does not in fact render the amendment unnecessary. (3 R. S., m. p. 424, § 4, et seq., and especially § 7, sub. 14.)

Some cases are cited by the defendant in opposition to this view.

(Trolan v. Fagan, 48 How., 240.) This Was a motion to vacate the judgment, and such a motion might be luado for irreg'filarity’simply, and that case is disapproved in Peck v. Richardson (ut supra.)

(Kendall v. Washburn, 14 How., 381) This ivas a motion to'-set aside a judgment recovered on service by publication. The complaint had not been filed before publication; therefore the service had not in fact been made. In the present case the sendee was m'ádc; only the proof of the fact is defective.

(Reed v. French, 28 N. Y., 295.) This was a case where an admission of service had been obtained by fraud, and a 'judgment ‘had been entered, find execution thereon had been issued prior to ' one’ on the judgment taken by the same attorneys for other parties. The leading Opinion puts the decision on this ground. I do 'not understand that the remarks in regard to the admission Of service in that case, in the second opinion, were necessary. At any rate, the criticism that the admission of service did not contain 'the word “'personal” does not apply to the present case.

We cannot pass upon the question of the statute of limitations. All the facts are'not before us.

The judgment must be reversed, and a new trial granted, costs to abide the event.

Present — Leaened, P. J;, Boakdman and Bocke's, JJ.

Judgment reversed, and a new trial granted, costs to abide the event.