Londrigan v. McNally , 36 Vroom 163 ( 1900 )

The opinion of the court was delivered by

Collins, J.

The relator seeks a mandamus to compel the director and clerk of the board of chosen freeholders of the county of Hudson to draw, sign and deliver a warrant in payment of a judgment recovered October 10th, 1899, in the District Court of the city of Hoboken, by the relator against said board, for the sum of $140.13, which judgment was ordered paid by resolutions adopted Hovember 2d, 1899.

It is stipulated in the cause that there is in the hands of the county collector a fund raised under “An act concerning the payment of j udgments against any county,” passed March 31st, 1897 (Pamph. L., p. 129), sufficient for the payment of relator’s judgment, but the respondents contend that such judgment is void for lack of jurisdiction in the District Court to render it.

The pertinent provisions of the revised District Court act (Pamph. L. 1898, p. 556) are as follows:

“See. 35. District Courts shall have jurisdiction over actions by or against boards of chosen freeholders, quasi domestic, and municipal corporations equally with natural persons.

“Sec. 44. The first process to compel an appearance, except as in this act otherwise specially provided, shall be a summons.

“See. 45. The summons * * * shall specify a certain time and place, not less than five nor more than fifteen days from the date of such process, and shall be served at least five days before the time of appearance mentioned therein.

“See. 47. *' * * If the defendant be a board of chosen freeholders the summons shall be served by leaving the same with the director of the board or clerk thereof at least thirty days before the time of appearance mentioned therein.”

The ground of the respondents’ contention is that, as every summons must be made returnable not more than fifteen days from its date, there cannot be a service of thirty days before the time named for appearance therein, and that therefore, as there cannot be compulsory process against boards of chosen freeholders, the grant of jurisdiction over such boards must fail. This is a non sequitur, for there might be voluntary appearance without process. Indeed, the act, in section 34, provides for such appearance in all cases, and we are not informed in this cause what was the fact in that regard as to relator’s judgment. But compulsory jurisdiction, in our opinion, also exists. Sections 45 and 47 must be construed together, and the sensible construction is that the limit of fifteen days for the return of process is not applicable to actions against boards of chosen freeholders.

Let the rule to show cause be made absolute, with costs, and a peremptory mandamus be issued.