Dorsey v. Cummings

The evidence presented to the special county judge was in full compliance with the requirements of the statute, and gave the judge jurisdiction over the snbject-matter, and by the personal service of the order he also acquired jurisdiction over the person of the defendant. The omission to give the office addx-ess or place of business of the plaintiff, who appeared in person, as x-equired by standing X’ule No. 2, was a mere irx’egularity occurring after the ox-der was propex-ly granted; axxd it was error to dismiss the proceedings for that reason. It was not necessary to make the indorsement upon the papers intended to be filed or sexwed prior to their presentation to the judge. That formal and clerical act could have been done at any time prior to the sex-vice. If the service of the ox-der was not good and sufficient, because the same was not properly indorsed, the plaintiff could have made another service of a copy of the original ox-der, supplying the omissioxx, before the return day named in the order-, and thus keep the proceedings on foot. The rule was enacted for the convenience of the opposing pax-ty and his attorney; and a non-compliance thex-ewith is a mere irx-egularity, and does not necessarily vitiate the sex-vice of the order. (Evans v. Backer, 101 N. Y., 291; Clapp v. Graves, 26 id., 418.)

The pending proceedings were of importance to the plaintiff, and their dismissal, if allowed to stand, may defeat the collection of the plaintiff’s judgment. The only relief to which the defendant was entitled, in consequence of a non-coxnpliance with the rule, was to have the service of the order set aside, and that coxxld only be done upon notice to the plaintiff. By section 2433 it is declared that an order made in the coux-se of the proceedings can only be reviewed in the way and manner therein provided, which is as follows: “An ox-der, made by a judge, out of eoux-t, may be vacated or modified by the judge who made it, as if it was made in an action; or it, ox- the order of the judge vacating or modifying it, may be vacated or modified upon motion, by the court out of -which the execution was issued.” No power is here given to the judge to vacate or modify an order previously made by him on an ex parte application. The *79provisions of section YY2, which permits a judge, in particular instances, to vacate or modify orders previously granted by him, without notice to the adverse party, do not apply to these proceedings as they relate to orders granted in actions before final judgment. The remedies granted by the statute are denominated special proceedings, and are original in their character and intended as a substitute for an action in the nature of a creditor’s bill, and should ilot be dismissed, when properly instituted, except for the most substantial reasons. I cannot think that the legislature intended to confer upon a judge at chambers, on an ex parte application, the power to dismiss the proceedings or to make an order affecting the substantial rights of the prosecuting creditor without giving notice of the application. The order dismissing the proceedings should have been set aside for the reason that it was irregularly as well as erroneously granted.

The order appealed from is reversed and the order dismissing the-proceedings is vacated and set aside with ten dollars costs and disbursements.

Order reversed and motion to set aside order vacating proceedings granted, with ten dollars costs and disbursements of this anneal.