Equitable Trust Co. v. Salberg

The plaintiff attempted to begin an action in the Municipal Court by obtaining1 a summons against this defendant. The summons was not personally served upon the defendant, but the person to whom it was delivered for service presented to the clerk of the court an affidavit stating “ that after due and diligent search by me made I have. been unable to find the within named defendant so as to serve him with the within summons.” A very large number of alias summonses were subsequently obtained upon similar affidavits, until finally the defendant was served with the summons and complaint. The defendant then appeared specially, and moved to set aside the summons and complaint. The grounds of the motion were, that the defendant could have been found by any diligent search, since he was not in any way concealing himself, and that the court is without jurisdiction, since the alias summons was issued upon an affidavit stating no facts, blit merely conclusions of law. The trial justice granted this motion, and a formal order was entereS setting aside the service of the summons and complaint. In addition to the formal order, the words “service of the summons and complaint herein set aside by order dated April 30th, 1912 (see order within)” were endorsed on the summons in the blank space reserved for the judgment. It seems to me quite clear that, under the provisions of the Municipal Court Act, the motion and the order entered thereon were not authorized. We have frequently held that the objection to the jurisdiction of the court must be raised at the trial, and not by motion. *131Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 390. The Municipal Court Act does not specifically authorize such a motion, and the order entered thereon is not appealable. Even if the motion is denied, and a formal order entered thereon, this does not preclude the defendant from raising the same objection at the trial. Berkman v. Weisinger, 50 Misc. Rep. 515. Moreover, in this case, the court had pr-wna, facie jurisdiction. Section 30 of the Municipal Court Act does not provide that, before an alias summons can be issued, satisfactory proof must be presented to the court that the person having the summons to serve cannot find the defendant. On the contrary, it requires the clerk, who is merely a ministerial' officer without any judicial powers, to issue an alias summons whenever the person having the summons to serve shall “ so return.” Regarded merely as a “ return,” the affidavit presented to the clerk-complies with the requirements of the statute. Of course, the return is not conclusive upon the parties, and may be traversed, but the court, having prima facie jurisdiction, can determine the correctness of the return only by trial of the traverse.

Since, however, we are not specifically given the right to review the order by the Municipal Court Act, we-have no power to reverse it, unless upon an appeal from a judgment. In this case, the record contains no judgment, and apparently no judgment has ever been entered.

The appeal must, therefore, be dismissed, but without costs and without prejudice to the right of plaintiff to- enter judgment and appeal therefrom.

Seabury and Bijur, JJ., concur.

Appeal dismissed.