Beacon v. Rogers

HAIGHT, J. The appeals from the judgment and from the order were separately taken, and we have been furnished an appeal book upon each appeal. There was but one action, and both appeals are in that action, and we shall consequently consider them together. The papers show that the defendant was a resident of Smethport, McKean county, Pa.; that he was enticed within this state for the purpose of procuring his arrest and the service of the summons and complaint. The order appealed from properly vacated and set aside the service of the summons, as well as the service of the order of arrest, but it should not have dismissed the action with costs. The summons was properly issued to the sheriff. The order of arrest, we must assume, was obtained upon sufficient papers, and was properly delivered to the sheriff. The service only was improper, because of the enticement of the defendant within the jurisdiction of this court. In Higgins v. Dewey (Com. Pl. N. Y.) 14 N. Y. Supp. 894, and Id. (City Ct. N. Y.) 13 N. Y. Supp. 570, the order set aside the service, and vacated the order of arrest. On appeal the order was reversed, in so far as it vacated the order of arrest. In Metcalf v. Clark, 41 Barb. 45, the special term set aside the summons. On review it was held that the service only should have been set aside. The order contained no direction for the entry of final judgment, and we think the judgment entered was irregular, and that it could have been set aside on motion. The appeal from the order was from the whole thereof. The appellant only succeeds in part. Ho costs should therefore be allowed. The appeal from the judgment should be dismissed, and the judgment vacated, without costs to either party. The appeal from the order should be modified by striking therefrom the clause “and the said action is dismissed, with costs,” and, as 'so modified, affirmed, without costs of this appeal to either party. All concur.