Manning v. Johnson , 7 Barb. 457 ( 1849 )

By the Court, Gridley, J.

We are Of opinion that it sufficiently appeared before the justice that a new trial had been granted by the county court. The judgment record and the opinion of that court, by which it appeared that the judgment below had been reversed and a new trial awarded was enough for the justice to act upon. The objection that if the county court reversed the judgment it could not grant a new trial, was too technical. It is true that the code does not treat an order for a new trial as involving the reversal of the judgment below ; but it does that substantially; and the justice was right in disregarding the objection.

The important question upon this appeal is whether the justice who tried the cause wherein the judgment was rendered upon which the present action was brought ever acquired jurisdiction over the person of the defendant.

The declaration before the justice was founded on a judgment rendered in a justice’s court, and under sections 138 and 57 of the code merely alledged that the judgment was duly rendered, without setting forth any fact to show the jurisdiction of the justice. This allegation was controverted in the answer; which made it the duty of the plaintiff to prove the facts conferring jurisdiction, under the provision of the said 138th section of the code of pi'óóedure. In addition to this, the defendant in his answer denied in all possible forms any service of process, or any appearance by him, in the suit in which the judgment was obtained.

• Now under this issue we will not say that the judgment would be void, in consequence of the omission of the officer to serve process on the defendant, provided there was no collusion between the officer and the plaintiff, and no fraud on the part of the latter., (See Putnam v. Man, 3 Wend. 202.) But there must have been a return of personal service before the magistrate to authorize him to proceed in the cause and render judgment against an absent defendant. (19 Wend. 477. 3 Id. 202. 14 John. 481. 7 Hill, 39.) The question here, is whether there is any legal evidence of such a return, or of the actual service of the summons. We think there was not. The docket of the justice was the only evidence of those facts; and the following is the only entry which has any relation to the point in question. “ Sept 1. Sums 2 pers by S. B. Ward Const 11 plff appears,” &c. It can not be maintained that this entry furnishes any evidence of the service of a summons. There are, not only, no words that can be so read, but there are no abbreviations which, by filling up, would bear such a Construction, upon the most liberal intendment, in favor of the docket. The court extended the rule of intendment and construction to the very verge in the case of Groff v. Griswold, (1 Denio, 432.) There, however, it was only required to fill up the abbreviations in order to make out a return of personal service. But, here, it would be necessary to supply material abbreviations, as well as to fill them up. The entry in the docket can not be read so as to show that there was a return of the constable stating that he had personally served the summons on the defendant. Even ifit were competent to supply the defect by calling the justice to explain what he meant by the memoranda read from the docket. That was not doné. There was nothing but the bare words and figures, which we have extracted from the docket, to.prove to the court below the important fact on which the jurisdiction of the justice depended; a fact which was distinctly put in issue, and which was capable of proof (if indeed the fact existed) by the production of the summons, oí- if that had been lost, by the oath of the constable. The docket, it must be remembered, is documentary evidence, and should be sufficient on its face, to prove the fact which it is designed to establish by it. To admit evidence of so loose a character as the entry in question, to prove a fact so important, would be most dangerous. We are bound therefore to correct this error. The judgment of the county court, and of the justice, must be reversed ; and we also order a new. trial before the justice who tried the cause, under the authority conferred by the 330th section of the code.