System Co. v. Kessler

New York Supreme Court

System Co. v. Kessler

136 N.Y.S. 232

DecidedJune 21, 1912

StatusPublished

This text of 136 N.Y.S. 232 (System Co. v. Kessler) 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

System Co. v. Kessler, 136 N.Y.S. 232 (N.Y. Super. Ct. 1912).

Pincite

Opinion

POOLEY, J.

The return shows that the process which is the basis of the judgment was void.

[1] A summons must be returned not less than six nor more than twelve days from its date, and must be served at least six days before its return. The statutory requirements must be followed ini order to acquire jurisdiction.

[2] Of course, it is, and should be, the practice in reviewing these proceedings, if possible, to sustain them by every reasonable [233]*233and warrantable intendment, but a defendant is not bound by the service upon him of a void process, and it is his right to attack a judgment entered on the basis of a void process. The return indicates that the defendant was not readily found, and that presumably the process server assumed to change the dates to suit the circumstances.

[3] No one other than the clerk has authority to change the dates of the issue, and return of process, from the City Court. It practically amounts to a new process. The return shows a summons issued on May 10, 1911, returnable May 19th. This was returned and reissued June 3d, returnable June 14th. Judgment was entered by default on a summons returnable June 19th, or 16 days after the issue of the latest summons shown by the return.

Judgment is reversed, with costs.

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POOLEY, J.

The return shows that the process which is the basis of the judgment was void.

[1] A summons must be returned not less than six nor more than twelve days from its date, and must be served at least six days before its return. The statutory requirements must be followed ini order to acquire jurisdiction.

[2] Of course, it is, and should be, the practice in reviewing these proceedings, if possible, to sustain them by every reasonable [233]*233and warrantable intendment, but a defendant is not bound by the service upon him of a void process, and it is his right to attack a judgment entered on the basis of a void process. The return indicates that the defendant was not readily found, and that presumably the process server assumed to change the dates to suit the circumstances.

[3] No one other than the clerk has authority to change the dates of the issue, and return of process, from the City Court. It practically amounts to a new process. The return shows a summons issued on May 10, 1911, returnable May 19th. This was returned and reissued June 3d, returnable June 14th. Judgment was entered by default on a summons returnable June 19th, or 16 days after the issue of the latest summons shown by the return.

Judgment is reversed, with costs.

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Bluebook (online)

136 N.Y.S. 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/system-co-v-kessler-nysupct-1912.