Akin v. Albany Northern Railroad

14 How. Pr. 337

Opinion

Harris, Justice.

“ Civil actions, in the courts of record of this state, shall be commenced by the service of a summons.” This is the mandate of the legislature ; and I know of no other mode of bringing a party into court against his will. Until served with process, the court has no jurisdiction over him: and yet, in this case, we have three persons made defendants in an action, and that action brought to trial, and final judgment rendered against them, without service of process, or any other notice except that an application would be. made for leave to sue them. *

The record of the judgment presents the anomaly of a suit commenced against one defendant, a complaint against the same defendant, and then a final judgment against three persons who are strangers to the pleadings: their names appear for the first time in the judgment. It needs but to state the facts to show that thé proceedings cannot be upheld.

Nor was the plaintiff in a situation to proceed to. trial upon the issue already joined. Having obtained leave to amend the-complaint, he was required to serve a copy of the amended complaint upon all the defendants. The effect of amending was, to strike out the issue that had been joined. It was the right of the defendant, who had already answered, to put in a new ° answer to the amended complaint. (See Ward agt. Dewey, 12 How. 193.)

' The motion to set aside the judgment must be granted, and the plaintiff’s motion denied. The plaintiff should be charged with the costs of one motion.