Bulkley v. Bulkley , 6 Abb. Pr. 307 ( 1858 )

Potter, J.

If the summons in this case was not legally served,, the court have never had jurisdiction of the party defendant; and in such case all proceedings based upon the pretended service is void, and the judgment or decree without force or effect-In order to determine the legality of this service, let us inquire what is the obvious policy and object of the statute that requires the commencement of an action to be by the service of a suuk mons; and also what other rights are allowed to a party, when a summons has been duly and fairly served ? The summons is a proceeding which both gives, and limits the defendant to, a period of time in which to appear in the action to defend it. Its first undoubted office is to give to the defendant a certain authentic and fair notice that an action has been commenced; and next, to notify him of that reasonable time which the statute has afforded as an opportunity for preparation of his defence, or, in other words, a time to-advise and consult with counsel and friends as to the nature, 'propriety, and character of the defence to be interposed, if a defence is intended. When a defendant, by reason of such a notice, has been fairly brought into court, he is entitled, by virtue of other provisions of law (in cases that may require it), to apply to the court for any additional time that may be necessary to make preparation for the defence. These are the commonest rights which the spirit of the statute, as well as the fair demands of justice, allows to every citizen, in order to place him in condition to have a fair and impartial trial; and, if desired, a trial by the jury of the country. Any trick or device which deprives the defendant of these just and reasonable provisions, is a fraud upon the spirit and intent of the statute, and upon the rights of the party. In cases where a wife is a party to an action for divorce against her husband, she is permitted', by other equally just and wise provisions of law, a time and opportunity to apply to the court for an allowance (in discretion) for alimony, to be furnished and supplied by her husband during the pendency of the suit, and also that she be ini like manner supplied with all reasonable and necessary means to employ counsel, and to defray all other expenses of defending her just rights, her character, and her fame.

What one of these ordinary legal rights, can it be said, was allowed to this defendant in this case? What one of those rights could she have obtained by an effort that she could have made, after the service or pretended service of this summons ? Hot one. Did the manner of putting this summons into her possession give her notice of the commencement of an action % Was she thereby furnished with time and opportunity to prepare her defence ? Was she put in condition to advise with counsel to apply to the court for either addition al time or pecuniary relief? On the contrary, I think that human ingenuity may be challenged to present the parallel of this case, where any one by design and contrivance, by the aid of circumstances and occasion, and by the pretence of employing the process of the court and the forms of law, has been so effectually disfranchised, outlawed, and cut off from all relief, as that which this case presents, if this judgment is permitted to stand.

After the representations of the plaintiff to her as to the contents of this box, he knew that if she did not even wait her arrival in California to unseal it, she at least would be beyond the power to return in time to seek and obtain those rights which the law could furnish. For all the purposes of seeking the benefit of those rights, which the law intends to secure to every" citizen, he might as well have thrust her into a prison, and have been himself her custodian, safely keeping her from intercourse with any living being; and yet he seriously asks this court to hold, that even if the first service, by giving her the box, should be held irregular, that from the time she opened the box and read the contents of the summons, it should be regarded as good service. It is a sufficient answer to this proposition to say, that when she first read this summons, she was beyond the jurisdiction of this State, upon the broad expanse of ocean, and service there was no service at all in law. Ror is the charge of laches on her part (which is raised by the plaintiff) to be used against her. If the court had no jurisdiction by the service of the summons, they could not acquire it by laches. Courts never acquire jurisdiction by laches.

The plaintiff is an attorney and counsellor at law, and cannot be deemed ignorant of what constitutes good service of a summons. He does not pretend to be ignorant of the manner in which it is claimed that the service was effected. He stood by and saw the thing done, and knew the manner of doing it; both he and his clerk so swear.

Two of the affidavits state that it was done by putting the summons in a closed tin box; that box enveloped with paper and sealed; that the package so sealed was handed to the defendant at the moment of the leaving of the steamship, at its departure for California, for which place the defendant had taken passage by the act, procurement, and consent of the plaintiff; that at the time of handing her such package she was requested to deliver it to her mother in California, for whom (she was informed) it contained a present. Neither the plaintiff nor his clerk contradicted this statement. The plaintiff had lived and cohabited with the defendant as his wife, down to the very day of her departure; and lie had never to that time communicated to her a doubt or suspicion of her infidelity, or in-„ formed her of any intent to obtain a legal separation.

It is entirely immaterial, then, whether this package was received by the defendant from the hands of her husband, or from the hands of his clerk, so far as that act imparted to her acknowledge of what was intended .to be effected by it. The plaintiff being an attorney at law, doubtless has read the 133d section of the Code, which, in effect, prohibits a party from serving his own summons, and it is not, therefore, entirely improbable that he took his trusty clerk along to make the motions, and perhaps for the purpose of actually passing the box into the defendant’s hands; and as this act was performed while the plaintiff was affecting the most tender and affectionate interest at the separation between him and his wife, and connecting the act with the plaintiff’s conversation in regard to it, and •with the undisputed assurance on his part to her that the package contained a kind memento to her mother, as well as a note to herself, the other persons who saw and heard all this might well be mistaken as to whose hand, whether that of his clerk or his own, actually passed this box to the defendant. Divesting this act, if we may—if we can—of all fraudulent intent, or fraudulent representations, taking the view we have of the office of a summons, and the rights of the parties afterwards, can this court, sitting here to dispense equal justice, hold that the unknown possession of a summons thus disguised—thus enveloped—thus concealing from the party the very knowledge which it was the intent of the law should be communicated— constitutes it a good service within the spirit bf the statute? Such a holding would not only bring a reproach upon the administration of justice, but would be an impeachment of the universal dictates of common sense. It requires no other knowledge of the law, than to know that its basis is reason and justice, to be able to determine the right of this question; and the'attempt to dignify this act, hy claiming it to be a legal service' of the summons, is little short of an insult to the intelligence of the court.

This motion might be decided upon the views above expressed, without reference to any other of the moral aspects which the case presents. But the court would feel that they fell short of the discharge of their whole duty, if they failed to take judicial notice of the fact, that the plaintiff is an attorney and counsellor of this court, and therefore one of its officers; that by virtue of the rights and privileges which this position confers upon him, he has committed a gross abuse of the process and authority of the court. He has used the privileges which his license to practice confers, in order to acomplish his own private objects and purposes. By a secret and cunningly devised stratagem, he has decoyed a defenceless woman into a condition of entire helplessness, and while so ensnared, has perverted the use of the process of the court to the commission of a most unhallowed fraud upon her rights, and under circumstances of unparalleled heartlessness and cruelty. Hor is the moral aspect of the case relieved by the fact, that the victim of “this injustice was the wife of the plaintiff, to whom, at the solemn altar, he had pledged his holiest vows to love, to cherish, and to protect, and that she was also the mother of his offspring. It is sufficient for the court to know that the act which he calls the service of a summons, and upon -which he based his decree, was in no sense a legal service, but was a fraud imposed by him, not only upon the defendant, but also1 upon the court, and deliberately entered into its solemn records. If this pretended service was made in the manner detailed in the affidavits, his clerk, by whom it was effected, in swearing to due service, was guilty of most deliberate falsehood, if not of legal perjury; and the plaintiff, who doubtless planned the scheme, and who, knowing its iniquity, availed himself of its uses, is responsible to the charge of moral, if not legal, subornation of perjury. To tolerate, for one njoment, an act so flagrant and wicked, to be consummated by one over whom the court can exercise its control, to pass unrebuked, does not comport with the idea of a pure and honest administration of justice. Such a reproach, while in the exercise of the power with which I have been invested, it shall not suffer at my hands. The affidavit of the service of the summons by the clerk of the plaintiff, was made in the city and county of New York. To a grand jury of that county I commit the consideration of that paper. The affidavit of the plaintiff, upon which he obtained the order of reference, in which he coolly states, “ that no copy of an answer to the complaint in this action has been received, nor has the defendant entered any appearance in the action, nor has she, or any one in her behalf, demanded a copy of the complaint, and deponent was personally present and saw the summons herein served on defendant,” was taken before the clerk of Montgomery county, to whose grand jury I recommend the proper attention. To the general term of the Supreme Court, in whose immediate district this attorney and counsellor conducts his chief practice, I call attention to this officer of the court.

. The service of the summons, and all subsequent proceedings in this action, including the judgment and decree of divorce, is-set aside with costs.