Layton v. Cooper

3 N.J.L. 62

Opinion

Kirkpratrick, C. J.

— By the sixth section of the act constituting courts for the trial of small causes, it is enacted, that the summons shall specify a certain time and place of appearance, and shall be served by reading the same to the defendant, and delivering to him a copy thereof, when required, if he shall be found; and if not found, by leaving a copy thereof at his house or place of abode, in presence of some white person of the family, of the age of fourteen years, Who shall be informed of the contents thereof; and the constable serving such summons, shall, on the oath of his office, endorse thereupon, the time and manner he executed the same, and sign his name thereto. And in the thirty-eighth section of the same act, it is enacted, that this return, so to be made by the constable, shall be entered in the justice’s Socket; and of course become part of his record.

(a)

In the record before us, it does not appear that the sum-tn'O'ns was returnable at any place certain, and in records, nothing can be supplied by conjecture. Again: It is stated in the record, that the summons was returned, served the thirtieth of January, which was in 1806. It has been thought, that if the defendant appeared on the return day, of tin, summons, and made defence, that that appearance, the great object being answered, 'would cure any defect in the service of the summons. But in this case, the defendant did not appear; and, therefore, it was necessary, before the justice could proceed in his absence, that a return should be made in strict conformity to the law; for the justice is to judge of the legality of the service, and not the constable. And this return, too, according to the express words of the act, must be entered on the record. Hence it is to be taken, (for we can supply nothing,) that the defendant in this case, was not legally summoned. The justice, therefore, could not legally proceed against him on this process.

[*] I think, therefore, there must be a reversal of the judgment.

Rosseii, J. — Concurred.

Pennington, J.

— This cause was tried, on the return of the summons, in the absence of the defendant. This proceeding is warranted by the seventh section of the act constituting courts for the trial of small causes. But to give the justice authority to do this, there are certain pre-requisites to be performed. The summons must be served in the manner pointed out by the act; the constable must return the time and manner in which he hath executed the summons ; and the justice must enter this return on the docket; when it will appear of record, if the summons hath been duly served according to law. The return of the summons served, or served according to law, will not answer either the words or intention of the act; for the constable is required under his oath of office, to endorse on the summons, not only the time of service, but the manner he executed the same. The return, as it appears, by this record, is in the following words: “The summons returned, served the 30th day of January.” As to the manner of service, the return is silent. It does not appear, therefore, that the defendant hath been cited to appear in the manner required by the act; and until that appeared, the justice had no authority to try the cause in the absence of the defendant. The proceedings, therefore, are erronious; and the judgment of the justice, in my opinion, must be reversed. — Judgment reversed.

Vid. ante. *59. — Ed.