Comstock v. Clemens
Comstock v. Clemens
Opinion of the Court
— Cope,J. concurring.
This is a motion to dismiss the appeal on the ground that the plaintiff has failed to give security for costs after being required under sections five hundred and twelve and five hundred and fourteen of the Practice Act, he being a nonresident. Notice requiring such security was served on the twelfth of December, and the appeal was perfected on the nineteenth of January. No order staying proceedings accompanied the notice, and on the day following its service judgment was rendered in the action. It was too late to ask a dismissal of the action after judgment was rendered, and the undertaking on appeal furnishes sufficient security for the costs which may be subsequently incurred. Motion denied.
Opinion on the Merits
—Baldwin, J. and Cope, J. concurring.
The plaintiff seeks to enjoin the sale of certain personal property under an execution issued upon a judgment recovered against him in a Justice’s Court, and bases his claim for relief upon the ground that the Court never acquired any jurisdiction of his person. He avers that the summons issued in the action, in which the judgment was entered, was never served upon him. If this averment be true, he has an effectual remedy by motion to the Court to set the execution aside. The Justice possesses the power at all times to arrest process issued upon judgments entered in his docket which are void. If upon a proper presentation of the facts, the Justice should deny the motion, the plaintiff can appeal to the County Court from the judgment, if the time for that purpose has not elapsed, and raise by motion there the question as to the jurisdiction of the Justice. The appeal would be upon a question of law, and would of course be heard upon the papers in the action, or upon a statement prepared. (See sec. 625, Pr. Act, as amended in 1855.) But if the time to appeal has elapsed, the plaintiff can apply to the County Court for a writ of certiorari, and by that proceeding obtain a review of the action of the Justice in rendering the judgment, so far as the question of jurisdiction is concerned.
Judgment affirmed.
Reference
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- COMSTOCK v. CLEMENS
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- Where defendant, December 19th, under sections five hundred and twelve and five hundred and fourteen of the Practice Act, served on plaintiff, a nonresident, notice to give security for costs, the notice not being accompanied with an order staying proceedings, and on the next day judgment was rendered for defendant, and plaintiff appealed to the Supreme Court: Held, on motion to dismiss the appeal, that, after judgment, it was too late to move to dismiss the action; that the undertaking on appeal is sufficient security for costs subsequently incurred, and that the motion must be denied. Where plaintiff seeks to enjoin a sale of personal property under an execution issued upon a judgment recovered against him in a Justice’s Court, on the ground that the summons was never served on him, and therefore that the Justice never acquired jurisdiction of his person: Held, that plaintiff’s remedy is by motion in the Justice’s Court to set aside the execution. Held, further, that if the Justice should deny the motion, plaintiff can appeal to the County Court from the judgment, if the time for appeal has not elapsed, and raise by motion there the question as to the jurisdiction of the Justice. The appeal would be on a question of law, and would be heard on the papers in the action, or on a statement. Held, further, that if the time for the appeal has elapsed, plaintiff can apply to the County Court for a writ of certiorari, and thus review the action of the Justice in rendering the judgment, so far as the question of jurisdiction is concerned.