Haughey v. Wilson

1 Hilt. 259

• Court: New York Court of Common Pleas
• Decided: November 15, 1856
• Status: Published

Opinion

Daly, J. —

The summons was returnable at 9 o’clock:, and the return of the constable, that be served a copy of tbe summons upon the defendant, was conclusive. It gave tbe justice jurisdiction to proceed with the cause at that hour, and it cannot be impeached or brought in question on an appeal from tbe judgment. If tbe constable did not serve a copy of the summons, the defendant must seek his remedy against the constable by an action for a false return. 8 How. 353 ; 3 Wend. 202 ; 10 id. 300 ; id. 525 ; 7 id. 398 ; Cowen & Hill’s notes, 1087.

The defendant not haying appeared, the justice, at the plain tiff’s request, made an entry upon the back of the summons adjourning the cause until the 27th, but the plaintiff’s witnesses having subsequently appeared, the entry of the adjournment was disregarded, and the justice, before 10 o’clock, proceeded with the cause, and rendered judgment. The mere entry of an adjournment upon the back of the summons, which was disregarded immediately after, and the cause proceeded with, amounts to nothing. It is sufficient to support the judgment, that it is disclosed by the return that the justice proceeded with the cause within an hour after the time named in the summons upon the return day. He proceeded to hear and determine the cause within a reasonable time, which was all that was essential to render his subsequent proceedings regular. f

The testimony, it is true, was very general, but it was smn-cient to warrant the judgment.

If the appeal had been taken upon the merits, we might have relieved the defendant, as he excuses his default, and swears that he had a defence to the action, but that is not made one of the grounds of the appeal. The ground of appeal is for error in the judgment, and not for relief upon the merits.

Judgment affirmed.