Dominick v. Eacker

By the Court, Willard, J. The ca. sa. in this case was erroneous, because it lacked the seal of the proper court. It was the same as if it had no seal. This defect, however, was amendable. (4 Cowen, 550. 1 Wend. 16. 5 Id. 103.) The ca. sa. was therefore not absolutely void, but voidable only; [19] and such process is a good protection to the officer, and it seems, to the party, until set aside. (Reynolds v. Corp, 3 N. Y. T. Reports, 267. Chapman v. Dyett, 11 Wend. 31, 32.) In the latter case the chief justice confounds irregular with erroneous, as applicable to voidable process, or such as may be amended. But he states the principle truly, that voidable process will protect both the officer and the party, until it is set aside. Hence the practice of requiring, in many cases, as a condition of setting aside voidable process, a stipulation from the party not to bring an action for acts done under the process, antecedent to the motion. (See 15 Wend. 575; 2 Denio, 185; 5 Hill, 194; 7 Id. 35; 16 Wend. 514.) A process may be said to be fair on its face when it contains no intimation that there was a defect of jurisdiction in the court out of which it issued, either as to the subject matter or the person of the defendant; and when the subject matter is apparently within the jurisdiction of the court. (5 Wend. 170.) Those defects in the process which are amendable, and which do not render the process absolutely void, although apparent on its face, do not render the officer or party liable. It is only jurisdictional defects, and such as cannot be amended, which render the officer liable, when they are apparent on the face of the process. These rules are deducible from the cases cited. See further on the same subject, The People v. Warren, (5 Hill, 440;) Webber et al. v. Gay, (24 Wend. 485.) In this case the defendant did not, as he might have done, call upon the judge to pronounce the defence complete as to both defendants. The question does not therefore arise whether enough appeared to justify the party, as well as the officer. I have already anticipated the main point presented by this bill of exceptions. I think the circuit judge erred in holding that a defect which renders process voidable only, deprives an officer of the protection of his process, if the defect appears on the face of the j>rocess. It has been shown that such defects do not render the officer liable until after the process is set'aside. The process is good, as a defence to officer or party, until it is set aside. The apparent defects which leave the officer without [20] protection, are such as apprize him of a want of jurisdiction in the court issuing the process, either over the subject matter, or the person of the defendant. The error at the circuit arose from not adverting to this distinction, if the defects be amendable, it matters not whether they are apparent on the face of the process, or not. They do not, until it is set aside, deprive the process of its protecting efficacy. The parties having severed in their pleadings, Powell was entitled to a discharge, even if the other party were not. In McMartin v. Taylor, (2 Barb. Sup. Court Rep. 356,) we decided that one of several defendants sued for a tort is entitled to a verdict before the case of his co-defendants is submitted to the jury, if the testimony be such, that if he were sued alone he would be entitled to a nonsuit. We also held that this was not matter of discretion, but of right. Testing this case by these rules, the circuit judge, at the close of the case, should have directed the acquittal of Powell, the officer. We think there should be a new trial, with costs to abide the event. Ordered accordingly.