Tracy v. Shannon

Van Hoesen, J. The remedy of Mr. Shannon is to appeal upon the alleged error in fact. Section 3057. The remedy under the old practice was by writ of error coram vobis. When the return of the marshal falsely or untruly certifies that the summons was served upon the defendant, and a judgment is rendered against him without his knowing that an action against him has been brought, he must appeal, and satisfy the appellate court by affidavit that he was not served. 2 Wait, Law & I’r. 74; Fitch v. Devlin, 15 Barb. 48; Waring v. McKinley, 62 Barb. 612; Tanner v. Marsh, 53 Barb. 439. If the defendant, who was not served with a summons, should not ascertain that a judgment against him has been rendered in a justice’s court until the time to appeal from it has elapsed, he may by injunction stay the execution, and obtain a judgment for the cancellation of the justice’s judgment. Patterson v. Naehr, common pleas chambers, December, 1888. The motion to •set aside the judgment is denied, and the defendant is left to his remedy by appeal, or to his remedy in equity, if the facts should warrant it.