Hedden v. Van Ness

3 N.J.L. 84

• Court: Supreme Court of New Jersey
• Decided: September 15, 1806
• Status: Published

Opinion

Kirkpatrick, C. J.

Among the reasons assigned for the reversal of this judgment, are these, viz.

That Jotham Hedden, one of the defendants, was dead before the action brought, as appears by the record itself.

That administrators of Jotham Hedden are joined with himself and Daniel Hedden, as defendants.

That the summons, if served at all, was served on the day of trial, and the cause tried without the appearance of the defendants, or any of them. And all these reasons, as to matter of fact, are grounded on the record.

The judgment must be reversed.

Rosseix, J.&emdash;Concurred.

[*] Pennington, J.

The whole of the proceedings in this cause, are irregular. I shall only note a common error in the return of the constable ,* that is, that the summons was served on the defendant, without any thing more. The act of Assembly, and the reason of the thing requires, that the time and manner of service must be set out in the return. However, this may be cured by the appearance of the defendant, and subsequent proceedings, yet, in the case of a proceeding by default, in the absence of the defendant, it is a fatal error.&emdash;I concur in the reversal.

Judgment reversed.