Hogan v. Baker

2 E.D. Smith 22

Opinion

By the Court. Woodruff, J.

We have repeatedly held that the service and return of a summons containing no statement of a cause of action, gave the justice no jurisdiction.

Footnotes

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(a) But we have at the same time uniformly held, that if the defendant appear and submit to the jurisdiction by pleading to the merits, the defect is waived, and the objection cannot afterwards be urged on appeal. Though consent cannot give jurisdiction of the subject matter, it will give jurisdiction of the person.

A similar rule in regard to the effect of appearance and proceeding to trial, is also held to apply to an unauthorized adjournment. Although by such adjournment the cause be deemed discontinued if the defendant do not appear on the day of the adjourned hearing, yet, if he appear and proceed to trial, the defect is cured. (See Kimball v. Mack, 10 Wend. 497; Tift v. Cubun, 3 Hill, 180; Allen v. Edwards, 3 Hill, 500, and cases cited; Fanning v. Trowbridge, 5 Hill, 429 ; Stoddard, &c. v. Holmes, 1 Cow. 245.)

That an adjournment unauthorized by the statute, amounts to a discontinuance, has been repeatedly decided by the late Supreme Court. See Horton v. Auchmody, in 7 Wend. p. 200, and the cases there referred to, among which is the case of Proudfit v. Hurnman, 8 J. R. 391, in which it was held that where a justice adjourns at the instance of the plaintiff, after a previous adjournment, such adjournment amounts to a discontinuance, and the cause is out of court.

By the terms of the statute relating to Assistant Justices’ Courts in the city of New York, (sec. 87 of laws to reduce, &c., 2 R. L. 370,) the justice is required to proceed to hear, &c., the proofs, at a time not exceeding six days after the return of the summons. Although an adjournment upon the defendant’s motion is in a subsequent section provided for, I find nothing to warrant an adjournment on the plaintiff’s motion, when the action is commenced by summons, beyond six days. Title 4, c. 2, part 3, of the Revised Statutes, has no application to the Justices’ Courts in the city of New York.

The discretion which justices have in granting or refusing adjournments, spoken of in the cases cited by the counsel for the respondent, (8 John. 320, and 3 Hill, 328,) is a discretion limited by the period within which they have power to adjourn, and not a right to adjourn for a period which the law does not allow.

By the consent of both parties, an adjournment may be had, without prejudice to the action. But in this case, by adjourning for ten days on the plaintiff’s motion, after issue had been joined and an adjournment had, the cause was in effect discontinued, and the judgment herein must be reversed.

Judgment reverséd.

See Cooper v. Chamberlain, 2 Code Rep. 142; and Bray v. Andreas, 1 E. D. Smith’s C. P. R. 387.