Taylor v. Judd

Park, C. J. This case requires little consideration. It appears that the original complaint and summons in the summary process were dated, by mistake, the fifteenth day of December, when in fact they were signed, issued and served on the sixteenth of that month, at which time they should have been dated. It further appears that on the return day Of the process the plaintiff in the present suit appeared and [485] proceeded to trial upon the merits of the case, without making any objection to the date of the complaint and summons. It is of course now too late for him to take advantage of the defect, after having voluntarily taken the chances of a judgment in- his favor upon the merits of the case, unless the defect is sufficient to render the proceedings absolutely void. This the plaintiff admits, for he has sued the defendants in an action of trespass for serving the execution which issued upon the judgment rendered against him in that proceeding. If the judgment was not void, it is clear that it would protect the officer in serving the execution based upon it. Was then the proceeding void ? This is the only question we have to consider. All suits take effect from the date of their service upon the defendant. This has been held by this court in numerous decisions. Now the summons in the summary proceeding was served on the sixteenth day of December. The suit therefore commenced on that day, and whether the complaint and summons were dated the day preceding, or not, is of but little importance, provided they were issued on the day they were served. Surely the fact in regard to the time when they were issued could have'been proved by parol, if the plaintiff had made objection to the complaint on the ground of its date on the trial before the justice. And it is equally clear that the mistake, if then brought to the notice of the court, could have been at once corrected by amendment, and the defect cured. If this could have been done, then manifestly the proceeding was not absolutely void. The case of Olmsted v. Hoyt, 4 Day, 436, is similar in principle to the case at bar. In that case there was a mistake in the date of the writ, and if it had been issued on the day it bore date two terms of the court would have intervened before the term to which the suit was brought. In an action of trover to recover the value of the goods sold on the execution which issued on the judgment rendered in the case, it was held that the judgment, though founded on such process, while it remained unreversed was not absolutely void, but that it was competent for the defendant to show by parol testimony [486] that the writ was issued on the day it was served, and that having been drawn for a previous term it was afterwards altered for the term to which the suit was finally brought, and in doing so the original date was retained by mistake. This case seems to be decisive of the one under consideration. A new trial is not advised. In this opinion the other judges concurred; except Carpenter, J., who, having tried the case in the court below, did not sit.