Acker v. Hauteman

63 How. Pr. 280

• Court: New York Supreme Court
• Decided: April 15, 1882
• Status: Published

Opinion

Per Curiam.

The error of the sheriff in not delivering the summons with the other papers, was not fatal to the jurisdiction of the court. That jurisdiction is preserved by section 1693 of the Oode, when read in connection with section 416. The action was brought to recover possession of personal property, and the effect of the neglect of the sheriff to mate service of ths summons was, that the chattels were replevied before the service of the summons. The seizure, therefore, must be deemed as equivalent to the granting of a provisional remedy for the purpose, of giving jurisdiction to the court and enabling it to control the subsequent proceedings in the action and as equivalent to the commencement of the action for the purpose of determining whether or not the plaintiff had a right to maintain the action or the defendant is liable thereto.

Section 416 provides that from the time of granting a provisional remedy the court acquires jurisdiction of the case and has control of all the subsequent proceedings.

The summons in this case was afterwards served by the sheriff and the defect was thereby cured ; it had previously been served on the other defendant.

We see no reason to doubt that the provisions of the sections quoted, uphold the ruling of the court below.

The order should be affirmed.