Titus v. Relyea

8 Abb. Pr. 177

Opinion

By the Court.

Footnotes

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*—Potter, J.

The defendant, by law in such a case as this, is limited in his application for relief to a motion^ as the only remedy that exists for him to review the question of jv/risdiction in a proceeding by which he may lose his estate. By the decision of the special term, he has been restricted even, in this right of review, and directed to make another application, and to submit such terms, if he makes that application, as the court before whom it is made may there impose; which terms may be to allow a judgment that may have been obtained without jurisdiction of his person or estate to remain as security to await a trial on the merits of the claim. And thus he may be cut off from examining the question of jurisdiction, not only by being compelled to submit to error against right, but by a reversal of the ordinary course of practice and having a judgment entered against him before trial. If the court had no jurisdiction in this case, such a decision is obviously wrong, because it is, and ever has been, the policy of this court to allow the question of jurisdiction to be raised at any time. He ought to be allowed this privilege certainly, on the first he can get into court. Without jurisdiction, even in this court, the whole proceeding is coram non judice.

A party ought not by any compulsion in practice to be forced to admit jurisdiction. This motion, as has been stated, was denied solely on the ground of laches, and although I have not been able myself to discover any, still as they have been adjudged by a member of the court, I would not undertake to review the decision upon that ground, except that the question of jurisdiction, to which laches never apply, arises in the case. If any one principle more than another is well settled by the courts, it is that they cannot acquire jurisdiction by laches. And although a party may waive an irregularity by such means, courts cannot impart vitality to a void judgment by any action based upon laches. And an adjudication that there has been laches, does not of itself confer jurisdiction. Let us then examine the question of jurisdiction. In this case, claim is made of jurisdiction over the personal property of the defendant, by a substitute provided by statute, for. personal service. In all such cases we are bound to see that the statute has been strictly pursued. The persons and estates of individuals would be subjectio alarming hazards if jurisdiction could be obtained over them by any thing less than the fullest compliance with all their requirements. In Evertson a. Thomas (5 How. Pr. R., 46), Parker, Justice, says, after citing various cases, “ it will appear by these cases, how careful the courts have been to see that the statute is strictly complied with, in pro ceedings which, subject property to seizure and sale without a personal service of process on the owner. The duty to protect against injustice is certainly none the less obligatory under the Code, which authorizes the recovery of judgment in so many cases on a mere publication of notice,^substituted in the place of personal service.”

The obvious design of the statute, which requires the commencement of an action to be by summons, is to give the defendant notice, not only of the commencement of the action, but when and most especially where, he may appear and defend it, and this whether served personally or by publication. A defendant residing in any State that has no Montgomery county in it, who should be sued in an action commenced by summons and complaint, sent to him by mail by a stranger, for a cause of action arising in his (defendant’s) own State, which summons and complaint should communicate to him only the fact that the suit was commenced in the Supreme Court, Montgomery county (without naming the State), or though it should further state that the complaint would be filed with the clerk of that county, without naming the location of the clerk’s office or the clerk’s residence, would not be far advanced in the information necessary for his defence. The design of the statute in such case, would be quite ineffective to that end. If, as we are informed, there are fifteen States in the Union, each having a Montgomery county, he would rather find confusion and embarrassment from reading his papers, than the designed information which it was the object of the statute to communicate. And the time which is afforded by the statute to make his answer, might be quite too short for the purpose.

In my opinion, this is not a compliance with the strict demands of the statute, which requires the summons to state, “ where the complaint is, or will be, or has been filed? In cases of publication, the name of the State should somewhere appear; it should be in the summons, and I think that it should be in the complaint. That it should be in tb§, summons, is entirely apparent to me, from the language of section 128 of the Code, which reads as follows: “The summons shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons at aplace within the State to be therein specified.” Now, whether it is the State or the place, or both, that is required to be specified, the object beyond all doubt is so to specify that it may avail to inform and not to confuse the party. In this case, neither State nor place are specified in the summons or complaint. Had the clerk’s residence, or the town or city in which the office was located been given, it might have aided the defendant in his necessary study of geography; this it did not give. In case of a personal service in the same State, this might perhaps suffice.

Taking the several sections of the Code, from section 127 to section 135 together, I have no doubt that the proper form of the summons required to be published in case of a non-resident defendant, is, that it should state that the complaint has been filed, and that it should have this form where the order of publication is obtained. Otherwise, as in this case, the summons annexed to the complaint, will not be a copy of the summons published. Where the defendant is a non-resident of the State, no diligence to serve is required to be shown. (§ 135, subd. 3.) The statement of the fact of non-residence is sufficient to obtain the order of publication, and this fact is usually as well known before as after issuing the summons.

In the case of publication, the Code (§ 135) requires that “ the summons as published, must state the time and place of such filing.” This I think was not done in this case. The summons as published, is dated the 13th of September, 1857, and is an exact copy in every particular of the summons annexed to the complaint, and of that contained in the judgment-roll, which states that the complaint will be filed. Appended to the summons as published, is a notice stating as follows: “ The complaint in said action (meaning doubtless the action referred to in the summons), was filed in the clerk’s office of the county of Montgomery, on the 1st day of October, 1857.” This notice, it will be seen, could not have been appended earlier than the date of the occunpice to which it refers, to wit.: the filing of the complaint, October 1st. It could not, therefore, have been a part of the summons issued on the 13th of September, nor of the one directed to be'published by the county judge, on the 30th of September. This notice could not have been a part of the original summons, and is no part of the summons in the judgment-roll. The party had no power to amend it. An amendment could only be made by an order of the court, and there is no evidence that this was obtained. The summons itself, therefore, as published, did not state the time amd place of such 'filing. And although it may be said, that for all practical purposes the notice was just as good and just as communicative as the summons, yet this was a jurisdictional fact, and the omission to insert in the summons as published, that “ the complaint was filed” and “the time andplace of such filing,” is fatal to the judgment. (Randall a. Washburne, 14 How Pr. R., 381, 382; Hallett a. Righters, 13 Ib., 44, 45, 46, and cases cited.) See Rawdon a. Corbin (3 Ib., 416, 417), per Hand, who says : " The order of publication should show that there was a summons and identify it. Ordering a summons to be published in anticipation of one being made out, would not connect them on the record, except by reference to the claim, which is unsafe. It is the summons which is to be published.”

There are several other objections to the validity of this record, not necessary to be discussed. I am satisfied that the doctrine of laches upon which the special term placed the decision of the motion, was error in this case, because there was no jurisdiction acquired, and that the order made should be reversed with costs, the order set aside, the judgment set aside, and plaintiff to be permitted to amend and re-serve the summons.

James, J.

This was not a motion to set aside the judgment for irregularity merely, it also involved the question of jurisdiction, and hence it was a matter of substance, affecting a substantial right. An order denying such a motion is clearly appealable. (9 How. Pr. R., 460; 10 Ib., 89.)

The motion was denied upon the ground of laches, but being a denial it does not affect the right of appeal. It was, no doubt, a matter of discretion with the special term, when laches were shown, to hear or dismiss the motion, and had an order of dismissal been entered, I do not think it would be appealable; but the court having sustained the motion, and received affidavits on the merits from both sides, an order denying the motion, although upon the ground of laches, cannot be regarded as a dismissal of the motion, but an order in the cause.

I am unable to discover that the defendant has been guilty of any such laches, as ought to drive him from the door of justice unheard. This judgment was not docketed until the last day of December, 1857; the defendant swears he knew nothing about the cause until about the 1st of January, when he casually heard that the plaintiff had commenced an action against him, and not until the 10th of February did he know what had been done in the matter. A party, upon mere rumor that an action has been commenced against hinij is not bound, at his peril, lest he be charged with laches, to exercise the utmost vigilance to ascertain what proceedings are being had against him. It is sufficient if he exercise reasonable diligence, and proceed at once after knowledge obtained. The defendant resided in Hew Jersey; judgment was docketed in Montgomery county, and he learned within one montli and ten days after entry that such judgment had been obtained; this must be regarded as reasonable diligence. But one special term was held in the district after that date, and before the one at which defendant moved; and that on the 16th of February, too late to give notice of the motion.

The strict rule of requiring a party to make his motion at the the first special term, which prevailed under the old practice, is not in its strict letter applicable in the present system. The special terms were then held at regular periods, at one place; now special terms are held at different locations, at irregular periods, often two or three in a month, some near and some remote, from the parties and place ofrtrial; and to compel a party to travel from one end of a district to the other, to make a motion, because the first term is to be there held, when perhaps in the next or second week after, a term would be held in the immediate vicinity of the parties, would greatly enhance the labor and expense of litigation, without any corresponding benefit to the cause of justice, or protection to the rights or interests of parties.

In this view no laches were imputable to the defendant in this case.

Ho valid judgment can be rendered against a defendant in any court, unless such court first obtain jurisdiction of his person by some one or other of the modes prescribed by law. Jurisdiction is claimed in this case by the publication of the summons and a deposit of the summons and' complaint in the post- office, directed to the defendant, under the authority of section-135 of the Code : that provision is intended as a substitute for personal service, and being in derogation of the common-law principle, the statute must be strictly observed, and all its provisions fully complied with, before jurisdiction is obtained. -

This section of the Code, especially requires that “in all cases where publication is made, the complaint must be first filed, and the summo?is as published must state the time and place of such filing.”

The summons as published in this case did not state the time and place, when and where the complaint was filed. Following the summons, and published with it, was a notice, stating the time and place of such filing of the complaint, but such notice is no part of the summons, and hence the publication is not a compliance with the statute, and the proceeding failed to confer jurisdiction upon the court, to pronounce judgment against the defendant.

For all practical purposes the notice was no doubt amply sufficient to inform the defendant where the complaint might be found, and had the court any discretion in the matter I should so hold. But the act is imperative. It does not say a notice may be attached to the summons as published, stating the time and place of filing, but the language is, “ the summons as published—must (not may) state the time,” &c., and the courts have no right,—they cannot, in a question of jurisdiction, disregard so plain and express a provision of the law.

This is fatal to the plaintiff’s case.

The publication of summons, the judgment, and all proceedings subsequent should be set aside, with $10 costs of this appeal. Plaintiff-to have leave to amend and serve" the defendant with the summons as required by the Code, with leave to the defendant to answer in twenty days, or in default of answer this judgment to stand. Nothing herein to affect the plaintiff’s rights under the attachment.

Present, James, Rosenkrans, and Potter, JJ.