People ex rel. Springsteen v. Powers

By the Court.—Ingraham, P. J. The non-appearance of the appellant before the justice on the return of the summons precludes him from objecting, on appeal, to the regularity of the proceedings before the justice. This was held by the general term of this district in The People a. Ulrich (2 Abbotts' Pr., 28). Even if he could now appeal, he is concluded by the return. If the return does not show the facts relied on, he should have applied for a further return.' He cannot contradict the return on a matter of jurisdiction, by an assignment of errors. Such could not be done when the practice was to serve a formal assignment of errors which the respondent had the opportunity [104] of answering by a joinder in error. The same reason applies with more force if the affidavit need in this case is to be considered an assignment of errors. This was so held in Harris and others a. The Judges of Westchester (20 Wend., 625). Cowen, J., says: “ The return cannot be contradicted by an assignment of errors. It must be taken as conclusive, and acted upon as true. It is supposed that an assignment of want of jurisdiction constitutes an exception to the rule. This is certainly not so, where the officers return that they have jurisdiction; nor am I aware that an issue has ever in any case been raised upon jurisdiction by an assignment of errors.” The" writ of certiorari in this case is issued under the provisions of the Eevised Statutes, and the court has power under that writ to examine all the decisions of the justice either upon matters of law or fact, (1 Seld., 383 ; 2 Ib., 309 ; 25 Wend, 280); but such decisions to be reviewed by this court must appear upon the return, and cannot be heard in any other manner. The decisions above referred to* appear to dispose of this proceeding. 1st. Because the relator, not having appeared before the justice, is precluded from objecting to the regularity of the-proceedings. 2d. Even if he can appeal on matters of jurisdiction, he-cannot raise such a question by affidavit where the return does not show the facts relied on. If the return is imperfect, the relator should have applied for a further return. Whether or not the affidavits were sworn to before the clerk, could be returned by the justice. It is not necessary for us, therefore, to express any opinion upon the merits, nor can we decide the point upon which the relator claims the want of j urisdietion to be founded, because it does not now appear whether the affidavits were taken before the deputy clerk or not. If such was the, case, and the jurat to the affidavits were signed by the deputy in the name of the clerk, we think the same were valid and authorized by the 71st section of the act relative to these courts (1 Laws of 1857, 707), which says: “The clerk may, by an instrument in writing filed with the justice, appoint a deputy who may in his name perform all the duties required of the clerk.” ■The intention was to confer upon the deputy similar authority [105] as that of deputy clerks in courts of record, who have invariably exercised such power. Judgment for the respondent.