Waring v. McKinley

By the Court, Mullin, J. The defendant and Parker both swear that the summons was served on the defendant by the constable stating to the defendant the contents, and that by such statement it was returnable at the office of the justice in Brewerton on the 18th of June, then instant, at 9 a. m. The summons issued by the justice was returnable on the day and at the hour aforesaid, at his office in Hastings, and the summons so returnable was returned personally served by the constable. The return of the constable is presumptive evidence of the service of process in the manner stated in the return. But such presumption may, at the proper time and in the proper manner, b.e overcome. We have the oaths of two competent witnesses that the return is false, and the constable has not ventured to support it. Under these circumstances we must hold, as matter of fact, that the process on which the justice assumed to render judgment was never duly or legally served on the defendant, and hence he never acquired jurisdiction of the person of the defendant. „ The falsity of the return, and the want of jurisdiction, seem to have been considered in the county court, and yet that court affirmed the judgmentthus holding that a constable may, by a false return of personal service of process, when none was in fact made, enable a justice to render a judgment against a defendant which the latter cannot avoid or get rid of, unless he shows affirmatively a valid defense, or that manifest injustice has been done. I am unable to comprehend anything more manifestly unjust than a judgment rendered against a man, which [620] binds his person or his property, when not only no opportunity has been given him to be heard, but he has been actually, and I think -we are bound to presume, intentionally, misled as to the place at which he was requested to appear and answer. The county court seems to have understood the word “injustice” in the 366th section of the Code, to refer to the merits of the action, and not to the proceedings. But in this the county judge most obviously erred. The application before him was by affidavits .to correct an error not affecting the merits, and of which the justice had no knowledge. This mode of proceeding is by the statute applicable only to cases where the error does not affect the merits; hence the injustice to be redressed must exist elsewhere than in the merits. The affirmance of the judgment seems to have been put upon another ground, viz,, that the justice, before the return day, informed the defendant of the mistake in the return, and offered to let him come in on the adjourned day and be heard, which offer the defendant did not accept, and thereby lost an opportunity to defend, by his refusal to appear as he might have done. Had no process whatever been issued against the defendant; it would not be claimed that after notice by a justice to a party, that he designed on a day and place named, to ■try a cause between him as defendant and another person as plaintiff, and render judgment against him if he did not appear, such a judgment would be permitted to stand, although the defendant did not appear. But where is the difference between the two cases ? In the one, no process whatever issued, in the other it was not served. The last is as fatal to the judgment as the former. But it is said that the return of personal service gave the justice jurisdiction, and that such service cannot be assailed by plea in the same cause, nor in any collateral proceeding. The rule alluded to is a perfectly just and wholesome one, [621] when it is properly understood and applied. If process has been defectively served, or not served at all, the defendant cannot come into court and by plea or answer set up such defect or want of service to defeat the action. The issue to be joined and tried relates to the merits, and not to the practice in the suit. But he may come in and by affidavit show the error, and ask a dismissal of the proceedings, and if the justice disregards, his objections he may, on appeal from the judgment, have a review of the question, and thus obtain the relief denied him in the court below. ( Wheeler v. The New York and Harlem R. R. Co., 24 Barb. 414.) If the defendant has no notice of the suit, before judgment, then his only remedy is by appeal under section 366 of the Code. On an appeal under this section, the deféndant may, by affidavit, allege the want or defect of service, and if the error so alleged is established, relief will be granted. Fitch v. Devlin, (15 Barb. 47,) is an authority directly in point on this proposition, and decisive of it. The party injured by a false return, as to the service of process, may maintain an action against the officer making it, and in such suit recover such damages as he has sustained thereby. (New York and Erie R. R. Co. v. Purdy, 18 Barb. 574.) If the party injured lies by and permits a judgment to be rendered against him, when no legal service has been made upon him, he is remediless, and justly so. By lying by until judgment is recovered, the rights of third persons who had no knowledge of the defect, and who had been led to deal with the judgment as valid, are involved, and it would be alike unwise and unjust to subject them to injury by permitting the defendant to allege a defect in the jurisdiction of the court or officer rendering it, when there was a prima fade valid return of service. • There is no such difficulty in this case. The proceedings to review the judgment are direct—not collateral; the rights of no innocent party intervene; and [622] the most flagrant injustice would be done if such a judgment as this could be permitted to stand. The question whether the remedy of the party is not by action against the constable, is not in the case, and if it was I should not hesitate to hold that the party injured by the false return of process, cannot be compelled to resort to any such shadow for relief. Wo plaintiff ought to be permitted to retain the profits of official rascality, and be. enabled to say to the defendant, “ It is true, you are cheated, and I am enjoying the benefits of the fraud, but you must not come to me for redress; go to the officer through whose villainy I obtained the advantage; if he is insolvent, it is your misfortune, not my fault.” The day, I trust, has gone by when such an answer can be given to an injured party, by him who has repeived the benefits of the injury. (Ellsworth v. Campbell, 31 Barb. 134. Sharp v. The Mayor of New York, Id. 578.) It is necessary that faith be given to official action; that for the purpose of conferring jurisdiction on courts or officers, certificates of .officers should be prima facie sufficient; and that all persons other than the party for whose benefit the .proceeding is instituted, should be protected by such certificates. But as against the party himself it should be competent to show that such certificates are false or fraudulent; that courts should have power to control the -action of their officers, so as to promote justice, not defeat it. "While it is not consistent with legal principles to permit a defendant, by plea, to assail service of process, it should be competent to do it by motion—to invoke the authority which the court has over its ministerial officers to protect him against manifest wrong. In this case the remedy by appeal is clearly given, and the evil is one designed to be remedied in the manner pursued in this case. And as no legal service was ever made, the court below should have given the defendant "relief. [623] [Jefferson General Term, October 7, 1862. Mullin, Morgan and Bacon, Justices.] The judgment of the county court and and that of the justice should be reversed, and a trial had before the justice who issued the process.