Delaware, Lackawanna & Western Railroad v. Ditton

36 N.J.L. 361

• Court: Supreme Court of New Jersey
• Decided: November 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Bedle, J.

The proceedings brought here by the writ are by scire facias before a justice of the peace, in favor of Ditton, against the railroad company. They are based upon an attachment issued by the justice against one Edward Richart, and money, or a debt, in the hands of the company, was undertaken to be attached. The scire faeias was served according to the following return of the constable: “Served the within summons on the Delaware, Lackawanna and Western Railroad Company, by serving the same on George E. Meeker, the said company's agent at Phillipsburg, by informing him of the contents' thereof, and giving him the justice's copy." The claim for which the attachment was issued is less than $100, and the amount attached was $40. The plaintiff need not bring his suit by attachment before a justice of the peace, in order to recover costs. Hanness v. Smith, 1 Zab. 496. If he does, and it becomes necessary to proceed against the garnishee by attachment, he can only do it when the writ of scire facias can be served in the same manner as provided in the justices’ court act for the service

of a summons. The writ of scire facias, referred to in section fifty-one of the attachment act, must necessarily be regarded, as it often is under the common law practice, in the nature of a summons, and as the commencement of an action. Winter v. Kretchman, 2 T. R. 45; Fenner v. Evans, 1 T. R. 267. There is no provision in the justices’ court act for the service of a summons upon a corporation, but in section seventy-six. Nix. Dig. 470.

* If this company can be considered as a corporation within that section, of which no opinion is intended, the summons could only be served upon the president, cashier or clerk of the corporation, if found, and if not found, •on any of the directors or managers of the said corporation. The service was evidently not made under that section, but under the supplement of March 22d, 1865, (Nix. Dig. 173,)† to an act for the relief of creditors against corporations, approved April 15th, 1846, (Nix. Dig. 172,) treating the company as a foreign corporation. Both the act of 1846 and the supplement of 1865 refer to the mode of serving process in the higher courts, and not when issued by justices of the peace. This is clear from the scope and nature of the provisions of those acts. The service was upon Meeker, an agent; whether a director or conductor, or what kind of an agent, it does not appear. The service could only be under section seventy-six of the small cause act. And if it cauld not be made, under that act,' the proceedings before the justice, both in the attachment and the writ of scire facias^ must be ineffective to reach the garnishee. The other question raised need not be considered. The writ of scire facias, and the subsequent proceedings brought up by this certiorari, must be set asidei

Cited in Mayor, &c., of Jersey City v. Hutton, 9 Vr. 88; Townsend v. School Trustees, 12 Vr. 312.

Rev., p. 539, § 7.

Rev., p. 193, § 88.