Brown v. Cady

19 Wend. 477

• Court: New York Supreme Court
• Decided: May 15, 1838
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

Whether the numerous points decided by the court below can be sustained or not, it is not material to enquire into, except as to that arising upon the objection that jurisdiction of the person of the defendant was not shown in the justice who rendered the judgment declared upon. The fact that the justice had such jurisdiction was very material, and should have been established beyond all doubt. The proof lay with the plaintiff, and the means of producing it were in this case peculiarly within his power, as Parke was the constable who served the summons, if any service was made; and who subsequently became assignee of the judgment and instituted these proceedings. He might have been made a competent witness for the plaintiff, (having previously parted with his interest to Swords,) on the execution of a proper release. Indeed, the defendant offered to waive the objection.

I have not been able to discover the slightest legal evidence of the personal service of the summons ; no memorandum in the docket, or knowledge or recollection of the fact by the justice. On the contrary, he stated explicitly that he had no remembrance either of the issuing of the summons or return of personal service. True, from the entries in his docket he is confident one was issued, and he believes he would not have rendered judgment unless there had been such a return. But this is obviously the merest conjecture ; for there is nothing on the face of the docket save an item of constable’s fees there charged, but for what, does not appear, from which to warrant the presumption relied on.

If, on an inspection of his docket, the magistrate had testified that his recollection of the proceedings had so far recurred to him that he could state the facts which he has put forth only by conjecture, the proof would have been satisfactory. But all recollection is positively denied; and the naked memorandum, which of itself, in the manner here made, amounts to nothing in the way of evidence of the fact, together with the belief that he could not have thus erred, constitute the only grounds upon which he ventures to rest in testifying upon the point. This is not evidence in any case, especially, not of facts so essential to the jurisdiction of the justice, and the reasonable protection of the rights of the defendant. How could the magistrate know that the forty-two cents fees of constable were for service of the summons, when he could not state that any summons had been issued? Much less could it ~ay any reasonable foundation from which to infer a return of personal service; that rests solely upon the belief, of the justice that he could not have committed the error involved in the objection. The judgment must be reversed, and a venire de novo must be issued; costs to abide the event.

Judgment reversed.