White v. . Bogart

73 N.Y. 256, 1878 N.Y. LEXIS 608

Opinion

Allen, J.

None of the objections to the judgments of White and others go to the jurisdiction of the court over the subject-matter of the actions or the persons of the defendants. All the defects in the proceedings, and in the judgments alleged, are mere irregularities not affecting the jurisdiction, questions of practice, and all, if not cured by the statute, might have been supplied by the order of the court, and the judgments made regular in form. For the irregularity complained of, the judgments cannot be attacked collaterally. The due and regular service of the summons and complaint, in each case, was admitted by the defendants, and their signatures were proved by the oath of competent witnesses, unless it be said that the plaintiff who proved the admission of service in one of the actions was incompetent. The statute, while it declares that the summons shall be served by some person other than the plaintiff, does not, in terms, make him incompetent to prove the admission of service. (Code, §§ 133, 138.) Service of the summons gave jurisdiction, and any defect in the proof would be supplied or might be waived by the defendants. The admissions do not state the place of service, and to this extent were technically defective. But there was an appearance by the defendants in person in the several actions, which was equivalent to a personal service of a summons, and gave the court jurisdiction of the persons, without the service of a summons and complaint. (Code, § 139.) The consent that judgments be entered was the equivalent of an offer of judgment under. section 385 of the Code; and, although there was no formal acceptance of the offers, they were accepted, in fact, by the entry of the judgments, and the want of a formal acceptance in writing, to be filed with and make a part of the record, was an irregularity merely, not affecting the validity of the judgments, and it may be filed at any time, nunc pro tunc, by leave of the court, or may be waived by the party.

The order must be affirmed.

All concur, except Miller, J., absent.

Order affirmed.