Haulenbeck v. Gillies

7 Abb. Pr. 421, 2 Hilt. 238

Opinions

By the Court.

*—Hilton, J.

—The plaintiff, a resident of New Jersey, sued the defendants in the Sixth District Court, by long summons, and without giving security.

The defendants appeared, and these facts being admitted, instead of answering, “ moved to dismiss the case,” because no security had been filed.

The justice in his return states that he granted the motion, and from his ruling the plaintiff appealed.

Upon the argument we are asked to dismiss the appeal upon the ground that such a decision, by which no costs were awarded, is not appealable.

Under the law as it existed prior to the act relative to the district courts in this city, passed April 13, 1857 (see Laws of 1857, vol. 1, p. 707), a non-resident plaintiff might at his option sue either by long or short summons, the only difference being, that in the latter case he was required to furnish proof of his non-residence, and give security. (Nichols a. Tracy, 1 Sandf. S. C., 278; King a. Dowdell, 2 Ib., 131; Allen a. Stone, 9 Barb. S. C., 61; Kelly a. Kelly, 2 E. D. Smith, 250.)

But by the act of 1857, the practice in this respect was changed, as will be seen by an examination of its provisions.

By section 13, when the plaintiff is not a resident of the county, and gives the security for costs required by section 23, the summons must be returnable in not less than two, nor more than four, days from its date. In other words, it must be a short summons.

Section 23 requires the security in such cases to be given before the summons is issued.

Section 45 specifies the cases where the justice must render judgment dismissing the action with costs, and without prejudice to a new action. And among the cases there enumerated, .are those where it is objected at the trial, and appears by the evidence, that the action is brought by a plaintiff not a resident in the county, without giving the security required by section 23 of the act. If, however, the objection is not taken at the trial, it is waived, and the court will be deemed to have jurisdiction.

In this case the return shows that the fact of the plaintiff’s non-residence duly appeared, and the objection having been taken by the defendants that the action had been brought without giving the security required by the act, the justice very properly dismissed the action.

But as the return fails to show that any costs have been adjusted against the plaintiff, the determination of the justice appears to be incomplete, and as was said by the late Supreme Court in a.somewhat similar case (Monell. a. Weller, 2 Johns., 8), is therefore incapable of reversal or affirmance.

For this reason the motion to dismiss the appeal must be granted.

Appeal dismissed, without costs.

Present, Daly, P. J., and Brady and Hilton, 33.