Barnes v. Harris , 4 N.Y. 375 ( 1850 )

Gardiner, J.

The only objection to the declaration, which is important to be considered, is, that it does not state facts necessary to give the justice jurisdiction of the person of the defendant. It may be assumed as a principle, to which it is believed there is no exception, that a court having authority to issue process, acquires jurisdiction of the person of the defendant, prima facie, by a personal service of that process upon him iu the maimer required by law. The 11th section of 2 B. S. 226, 2d ed. provides among other things, that suits in a justice’s court may be instituted by process, which shall be a summons, warrant, or attachment. The form of the summons, the mode of service and return are prescribed in the 14th, 15th and 16th sections of the act. It is the ordinary process of the court. The warrant and attachment are extraordinary, and can only issue upon a special application, (§§ 17, 26,) and upon proof of circumstances showing the grounds of such application. (2 B. S. 160, 201, 203, §§ 19, 28, 17, 292, 301, 2d ed.) All that is necessary to authorize the issuing of a summons is the mere suggestion of the plaintiff that he has a demand against the defendant, falling within the second section, defining the [377] jurisdiction of the court. The justice is not at liberty to decline jurisdiction, except under the special circumstances mentioned in the 7th section; in all others, by necessary implication, he is obliged “ to take cognizance of the action.” The plaintiff is not bound even to alledge, much less to prove, that the defendant is a resident of the county, the statute neither authorizing or providing the means for obtaining the evidence. In a word, a request for process by or in behalf of a plaintiff for a cause of action within the 2d section, is equivalent in effect to a plaint levied, according to the old cases, which was in substance a statement of the demand and prayer of process. (1 Sound, by Wms. 87, 90, n. 1; Coup. 10; 3 T. R. 185.) A plaint levied was all that was required, not only to obtain the writ, but all that was necessary to alledge in declaring upon the judgment, to give jurisdiction of the person. (1 Saund. 92; Cowp. supra.) The request referred to, which under our statute is a substitute for the plaint, is substantially alledged by the averment, that the plaintiff commenced the suit before the justice in an action of assumpsit, upon contract, by summons duly issued, &c. The authority to issue a long summons, the ordinary process of the court, is as ample under such circumstances, as to issue a warrant or attachment upon a special application, and th e proof required by law. In the latter cases, it has always been held that when the proof has been given the jurisdiction attaches, however the fact might be; and upon due service of the process issued, the defendant will be concluded by the judgment subsequently obtained, unless he appears and takes his-objection. (10 Wend. 200, 860.) The summons therefore, was lawfully issued by the magistrate.

The declaration also all edges, that it was personally served upon the defendant by a constable of the county, &c. This means, so far as regards the officer, a legal service, which could only be made in the county. (§§ 14,15.) The defendant being-found within the territorial limits of the court, must be held, prima facie, amenable to its jurisdiction, by virtue of its ordina[378] ry process. It is said that we can presume nothing in favor of the jurisdiction of an inferior court. Neither can we presume any thing against it. Now that the defendant was in the county when the process was served, is a fact admitted by the demurrer. As nothing is to be intended, we are not at liberty to infer from that fact that he was a resident; nor can we presume that he had a residence elsewhere; and if neither presumption is indulged, the defendant would be found in the county without having a legal residence any where. This is no uncommon occurrence. But in that event he was properly sued by summons, as none are exempted from that process by statute, but those who “ shall reside out of the county.” (2 R. S. 2d ed. § 292.)

Again, if the residence of the defendant must be averred, it must also be proved. It can not be shown by the docket of the magistrate, for although it is the foundation on which the proceedings rest, as the defendant insists, no record of the fact is directed or authorized by the statute. (2 R. S. supra, § 243.) The preliminary proceedings to authorize the issue-of extraordinary process, must be in writing and kept by the justice, as the revisers inform us, for his protection. (Reviser’s Notes to § 5 ; 3 R. S. 681, 2d ed.; 2. id. § 250.) But according to the view of the defendant, proof of all the proceedings, from the application of the plaintiff for a summons to the rendition of the judgment, unless the defendant appeared, would not be even - presumptive evidence in favor of the magistrate or any one else. If a warrant or attachment is applied for, evidence tending to prove the fact of residence is sufficient to give jurisdiction. (10 Wend. 200, 360.) But in case of a summons, the fact itself is made jurisdictional without any means of ascertaining its existence.

These are some of the inconveniences resulting from the doctrine contended for by the defendant; others will readily suggest themselves. They seem to have had some influence with our courts; for without adverting to Smith v. Mumford, (9 Cowen, 26,) and Stiles v. Stewart, (12 Wend. 473,) the point [379] was distinctly presented and decided in Hoose v. Sherrill, (16 Wend. 33,) and in Bromley v. Smith, (2 Hill, 518.) And in Cornell v. Barnes, (7 Hill, 37,) the form of a declaration upon a judgment of this sort was indicated, and it was said that to give jurisdiction of the person, “ the plaintiff must aver, either that the defendant appeared, or that process was sued out and duly served upon him.” And the learned reporter in a note reviewing the authorities, remarks, “ that the plaintiff should begin by alledging the issuing and service of the summons, &c. by which the suit was commenced, and then pass by i liter processum fuit, to the rendition of the judgment.” This has been done in this case. And we think that enough has been alledged to show, prima facie, a valid judgment. The judgment must be affirmed.

Boggles, Hurlbut, Harris, Pratt, and Gray, Js. concurred, and Harris, J. delivered an opinion in favor of affirmance.