Kelly v. Countryman

New York Supreme Court

Kelly v. Countryman

22 N.Y. Sup. Ct. 97

DecidedSeptember 15, 1878

StatusPublished

This text of 22 N.Y. Sup. Ct. 97 (Kelly v. Countryman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Countryman, 22 N.Y. Sup. Ct. 97 (N.Y. Super. Ct. 1878).

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Opinion

Per Curiam:

We think that the reasons stated in the opinion of Mr. Justice Landon dispose of this case. But the plaintiff insists that his rights are saved by section 139, Old Code. By that section the cohrt, from the time of the allowance of a provisional remedy, is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. But this is not in conflict with section 127, declaring that an action is commenced by the service of a summons, or with section 227, providing that for the purpose of that section the action is deemed commenced by the issue of a summons provided, etc. The court had jurisdiction of the subsequent proceedings in this case. But the failure to serve the summons within thirty days, made its previous issue a nullity, in respect to the commencement of the action. And the attachment fell with the action. The order should be affirmed, with $10 costs and printing disbursements.

Present: — Learned, P. J., Boardman and Tappan, JJ.

Order affirmed, with $10 costs and printing.

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Per Curiam:

We think that the reasons stated in the opinion of Mr. Justice Landon dispose of this case. But the plaintiff insists that his rights are saved by section 139, Old Code. By that section the cohrt, from the time of the allowance of a provisional remedy, is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. But this is not in conflict with section 127, declaring that an action is commenced by the service of a summons, or with section 227, providing that for the purpose of that section the action is deemed commenced by the issue of a summons provided, etc. The court had jurisdiction of the subsequent proceedings in this case. But the failure to serve the summons within thirty days, made its previous issue a nullity, in respect to the commencement of the action. And the attachment fell with the action. The order should be affirmed, with $10 costs and printing disbursements.

Present: — Learned, P. J., Boardman and Tappan, JJ.

Order affirmed, with $10 costs and printing.

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Bluebook (online)

22 N.Y. Sup. Ct. 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-countryman-nysupct-1878.