Reno v. Pinder

24 Barb. 423, 1857 N.Y. App. Div. LEXIS 87

• Court: New York Supreme Court
• Decided: July 14, 1857
• Status: Published

Opinions

Balcom, J.

It is provided by statute, that “ The constable serving a summons shall return thereupon, in writing, the time and manner in which he executed the same, and sign his name thereto.” (2 R. S. 228, § 16.) The verbal statement which the constable made to the justice, that he personally served the summons upon the plaintiff, on the 14th day of November, 1855, was no evidence of the service of the summons, on which the justice could act; and the indorsement of such statement upon the summons, by the justice, added nothing to its force. ' The only evidence which the justice had of the service of the summons still existed in the verbal statement of the constable. ¡Nothing was put upon the summons that was per se evidence of its service. The signature of the constable to the return on it was wanting. The statute says he shall “ sign his name theretoand he could not employ an agent to sign it for him, for the plain reason that it is his signature to the return, with which the law presumes the justice to be acquainted, that gives the justice jurisdiction of the person of the defendant, and authorizes him to enter in his docket the manner the service has been made.

The production of the summons, with the indorsement on it which the justice made, upon the trial of this action, was no evidence whatever, that the summons was personally served on the plaintiff. The indorsement of the justice on the summons was hut his written declaration in regard to a matter as to which he had no personal knowledge. It was no part of the duty of the justice to make the return, and his official oath did not bind him to make a correct one. The return was not made on the oath of either the constable or justice ; and no legal proof was made before the justice, that the summons had been served on the plaintiff; and no proof of the service thereof was made on the trial of this action, except the justice testified that the constable told him he had served it. The justice had no right to proceed in the action before him on what the constable told him as to the service of the summons. He could not act on information which he did not derive in a legal way. The proof which the justice should have had, was the signature of the constable to the return on the summons.

The judgment of the justice was void. It did not justify the ' defendant in causing the arrest and imprisonment of the plaintiff by virtue of the execution which the justice issued on it. The action was therefore undefended; and the defendant’s motion for a new trial must be denied with costs.

Mason, J., concurred.

[Otsego General Term, July 14, 1857.