Power Publishing Co. v. Hall , 69 N.Y.S. 533 ( 1901 )

McADAM, J.

The plaintiff recovered a judgment January 30,1901, against three defendants jointly on service of process against two of them, and the judgment and docket thereof properly' show that one of the defendants was not summoned. On March 2, 1901, .after the entry of judgment, a copy of the summons and complaint was served on the defendant who had not been served with process. On the theory that the said defendant is now in default, the plaintiff applies for an order directing the clerk to strike from the record the words “not summoned,” opposite the name of said defendant, to the end that all his property may be bound by the judgment. There is no warrant for such practice. Under the former Code (section 375), when judgment was recovered against one or more of several persons jointly indebted upon, a contract, those who were not originally summoned to answer the complaint might be summoned to show cause why they should not be bound by the judgment in the same manner as if they had been originally summoned. This was changed by section 1932 of the present Code, which provides that an action may be maintained by the judgment creditor against one or more of the defendants who were not summoned in the original action, to procure a judgment charging Ms or their property with the sum remaining unpaid on the original judgment. See 3 Rum. Prac. 368; 2 Abb. New Prac. p. 833, form 1592. The court must, therefore, decline to make the order applied for.