Abrahams v. Jacoby

Supreme Court of New Jersey

Abrahams v. Jacoby

54 A. 525, 69 N.J.L. 178, 40 Vroom 178, 1903 N.J. Sup. Ct. LEXIS 172

DecidedFebruary 24, 1903

StatusPublished

This text of 54 A. 525 (Abrahams v. Jacoby) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abrahams v. Jacoby, 54 A. 525, 69 N.J.L. 178, 40 Vroom 178, 1903 N.J. Sup. Ct. LEXIS 172 (N.J. 1903).

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Opinion

The opinion of the court was delivered by

Hendrickson, J.

We think the action of the justice of the peace in this case, in causing the summons, which was directed against A. Jacoby, to be amended so that defendant’s name would read Abraham J acoby, should be sustained. The defendant did not himself appear on the return day, but the record shows that, before the trial began, Ephraim Cutter, an attorney of the defendant, appeared for him, and objected to the summons; and asked that it be set aside, because the first or Christian name of the defendant was not inserted therein. The justice denied the motion, and thereupon .amended the summons.

It will be noted that the attorney of the defendant made no objection to the service, which appears to have been regular, and what he said was practically an admission that the. right party had been served. His objection was that the defendant’s Christian name was not inserted in the summons. Presumably the plaintiff did not know defendant’s full name when the suit was brought.

We think the one hundred and thirty-eighth section of the Practice act {Gen. Stat., ¶. 2556, § 138), which has been extended to Justices’ Courts {Gen. Stat., p. 1886, § 113), justifies the amendment of the summons.

We have been pointed to Elberson v. Richards, 13 Vroom 69, and Dittmar Powder Co. v. Leon, Id. 540, to show that such a defect in the summons is fatal. But they were proceedings under the Attachment act, to which the amending statute does not apply. We think the supplement to the Practice act approved April 16th, 1891 (Gen. Stat., p. 2594), would also apply to this case and justify the action of the court below.

The judgment is affirmed, with costs.

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The opinion of the court was delivered by

Hendrickson, J.

We think the action of the justice of the peace in this case, in causing the summons, which was directed against A. Jacoby, to be amended so that defendant’s name would read Abraham J acoby, should be sustained. The defendant did not himself appear on the return day, but the record shows that, before the trial began, Ephraim Cutter, an attorney of the defendant, appeared for him, and objected to the summons; and asked that it be set aside, because the first or Christian name of the defendant was not inserted therein. The justice denied the motion, and thereupon .amended the summons.

It will be noted that the attorney of the defendant made no objection to the service, which appears to have been regular, and what he said was practically an admission that the. right party had been served. His objection was that the defendant’s Christian name was not inserted in the summons. Presumably the plaintiff did not know defendant’s full name when the suit was brought.

We think the one hundred and thirty-eighth section of the Practice act {Gen. Stat., ¶. 2556, § 138), which has been extended to Justices’ Courts {Gen. Stat., p. 1886, § 113), justifies the amendment of the summons.

We have been pointed to Elberson v. Richards, 13 Vroom 69, and Dittmar Powder Co. v. Leon, Id. 540, to show that such a defect in the summons is fatal. But they were proceedings under the Attachment act, to which the amending statute does not apply. We think the supplement to the Practice act approved April 16th, 1891 (Gen. Stat., p. 2594), would also apply to this case and justify the action of the court below.

The judgment is affirmed, with costs.

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Bluebook (online)

54 A. 525, 69 N.J.L. 178, 40 Vroom 178, 1903 N.J. Sup. Ct. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abrahams-v-jacoby-nj-1903.