Gilmore v. Barnett

Learned, P. J. : The plaintiff' commenced an action against the defendant, a nonresident of the county, in a justice’s court, by a short summons, obtained on an affidavit stating that he had a cause of action against the defendant on contract. Before the return day the parties appeared, and the plaintiff declared on contract, and the defendant denied. The cause was adjourned, and on the day of adjournment the defendant did not appear. The plaintiff then filed an amended complaint and declared in tort for conversion of [516] cattle. The plaintiff gave testimony in his own behalf, and the justice rendered a judgment against the defendant in tort. The judgment transcript was filed ; the judgment docketed, and an examination against the person issued. The execution was set aside by the county court, and the plaintiff appeals. The plaintiff insists that the justice had jurisdiction, and that if the judgment was erroneous it cannot be attacked collaterally. (Hallook v. Dominy, 69 N. Y., 238.) But to move in an action to set aside an execution issued therein is a direct, and not. a collateral attack. The county court had control of its own process. The question here is not whether the process would not have protected the officer acting under it, but whether it was in fact properly issued. The defendant was notified by the fact of the issue of a short summons that the action was on contract. He was also notified of this by the complaint made against him at the joining of issue. Trusting to this he might well have neglected to appear at the day of adjournment. It is true that section 64, subdivision 11 (Old Code), permits amendments, “ when substantial justice will be promoted.” But substantial justice is violated when a defendant, sued on contract and joining issue on contract, is, in his absence, made defendant in an action on tort. In the case of Bigelow v. Dunn (53 Barb., 570), the parties were present when the plaintiff was permitted to amend a complaint on fraudulent representations by making it an action on warranty. In higher courts, when a pleading is amended, a copy must be served on the other party, that he may know what his opponent’s allegations are. (Code of Civ. Proc., 543.) By analogy, in a justice’s court no amendment changing the nature .of the cause of action should be permitted in the absence of the other party, after issue has been joined. The order of the county judge should be affirmed, with ten dollars costs and printing disbursements. Present — LearNed, P. J., BoardmaN and Bockes, JJ. Order of the county court affirmed, with ten dollars costs and printing disbursements.