Crouse v. Reichert

This was an appeal from an order denying a motion to set aside and vacate the judgment entered herein July 6, 1891. The summons and notice provided for by section 419 of the Code of Civil Procedure were served on December 13, 1890. On the 16th day of December, 1890, an attachment was granted on the complaint and certain affidavits furnished by the plaintiffs, and it was served on that day. On December 31, 1890, the defendant served a notice of appearance, and demanded a copy of the complaint, as provided for by section 479. Ho copy of the complaint was served in pursuance of such demand. On January 6,1891, 20 days after the service of the attachment papers, which included a copy of the complaint, judgment was entered. The only question involved on this appeal is whether the service of the attachment papers, which included a copy of the complaint, was a sufficient service of the complaint to permit the plaintiffs to enter judgment in disregard of the defendant’s demand for a copy thereof. In Sweet v. Steel Co., 6 Civil Proc. R. 69, Merwin, J., held-that, where a complaint was served two days after the summons, and before the defendant appeared, the plaintiff acquired no rights thereunder, and that the service should be set aside. In Paine v. McCarthy, 1 Hun, 78, the summons was served on June 17th, the complaint was served June 19th, the defendant served no notice of appearance, judgment was entered July 8th, and it was held regular; thus in effect holding "that the defendant could have no advantage from the service of the complaint at a later date. The same doctrine seems to have been held in Van Pelt v. Boyer, 7 How. Pr. 325. It would seem that the service of the complaint in this action was not sufficient, as it was not served with the summons, nor after the defendant had served his demand. Moreover, it was not served as a complaint in the case, but only as a part of the papers on which the attachment was issued; hence we are of the opinion that the judgment was irregular, and should have been set aside. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.