Myers v. Overton

2 Abb. Pr. 344, 4 E.D. Smith 428

• Court: New York Court of Common Pleas
• Decided: November 15, 1855
• Status: Published

Opinion

Ingraham, F., J.

The summons and complaint in this cause were served by the plaintiff upon the defendant. The defendant did not appear therein, and a judgment by default was entered against him on an affidavit of service made by the plaintiff on January 15, 1855.

The defendant moved to set aside the judgment on an affidavit in which he admitted the service of the papers, and upon the ground that the plaintiff could not serve the process. The motion was denied and the defendant now appeals to the general term.

The defendant contends that the court had no jurisdiction in consequence of the defective service, and, therefore, the judgment is void.

If this view is correct, the appeal should be sustained. I do not consider the law so to be. This court had jurisdiction both of the subject matter and the person, and the mode of service has nothing to do with the question of jurisdiction, where the proceedings are in a court of general jurisdiction. The irregularity arises not from the want of service, but from the mode of making it. In such a case, a defendant should appear and make the objection and move to set aside the proceedings. If he neglect to do so, he is to be deemed to have waived the objection. We so held in regard to an irregularity in the Marine Court. (Coit v. Messerve, July, 1855 ; see also Barnes v. Harris, 4 Comst., 374).

I see no reason to change the views I entertained when the motion was made, and as the defendant’s motion is solely on the ground^of irregularity, he was not entitled to any relief for that cause.

The order appealed from should be affirmed.

*

The defendant Overton refusing to pay the judgment recovered against him, was, in the usual course, brought before Judge Woodruff on an attachment issued in proceedings supplementary to execution. Kefusing to answer the interrogatories propounded to him, he was committed for contempt, December 6, 1855.

Being brought before Mr. Justice Dean, December IT, on habeas corpus, he was remanded to custody ; the justice holding the detention lawful. He was afterwards brought before Mr. Justice Whiting, who held that the matters decided by Dean, J. were res adjudícala, and remanded the prisoner.