Stewart v. Smith

New York Supreme Court

Stewart v. Smith

17 Wend. 517

CourtNew York Supreme Court

DecidedOctober 15, 1837

StatusPublished

Cited by12 cases

This text of 17 Wend. 517 (Stewart v. Smith) 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

Stewart v. Smith, 17 Wend. 517 (N.Y. Super. Ct. 1837).

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Opinion

By the Court,

Cowen, J.

The suit was by summons; the return of the justice does not set it out, nor does it set out the return to the summons, farther than that it was returned personally served. No day of sei vice is [292]*292mentioned, whether one day or six days before the return day docs not appear. The statute is positive that the day of service shall be returned (2 R. S. 228 § 16). It is a regular return only that can give jurisdiction.

Again; the summons itself mentions no place of appearance, as the return stands (id. § 14); nor that the justice held his court at the place mentioned in the summons. As there was no appearance of the defendant, these things were essential to confer jurisdiction, and the omission of them in the return is fatal. We need not, therefore, notice the other points urged by the plaintiff in error.

Judgment reversed.

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By the Court,

Cowen, J.

The suit was by summons; the return of the justice does not set it out, nor does it set out the return to the summons, farther than that it was returned personally served. No day of sei vice is [292]*292mentioned, whether one day or six days before the return day docs not appear. The statute is positive that the day of service shall be returned (2 R. S. 228 § 16). It is a regular return only that can give jurisdiction.

Again; the summons itself mentions no place of appearance, as the return stands (id. § 14); nor that the justice held his court at the place mentioned in the summons. As there was no appearance of the defendant, these things were essential to confer jurisdiction, and the omission of them in the return is fatal. We need not, therefore, notice the other points urged by the plaintiff in error.

Judgment reversed.

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Bluebook (online)

17 Wend. 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-smith-nysupct-1837.

Opinion

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