Hobart v. Wardner

The opinion of the court was delivered by

This is an action upon a promissory note for seventy-five dollars, without endorsements or payments, sued by trustee process originally in the county court. The writ was served upon the principal defendant, by attaching his property in possession, as well as in the hands of the *566trustee. He appeared in the suit and reviewed it. The trustee, on hearing, was discharged, and the principal defendant then moved the county court to dismiss the action, for want of jurisdiction. That motion was overruled, and, as we think, for good cause.

The revised statutes p. 190, § I, provide that “ all actions, founded on contract, entered into since the first day of January, 1839, (and this case comes within the provision,) may be commenced by trustee process.” Section 2 provides, that “ no such process shall be commenced before a justice when the matter in demand shall exceed forty dollars. By ánother provision of the statute, the coupty court have exclusive jurisdiction of all civil actions, not máde cognizable before a justice. Section 9 of the trustee act provides, that if the trustees be discharged, the “ plaintiff shall not proceed in the suit against the principal defendant, unless there has been such a service of the writ on him, as would be sufficient in an action commenced in the ordinary way, or unless he shall actually appear and answer to the suit.”

In this case both these grounds of retaining the suit in the county court, concurred. There was then, no ground for dismissing it, unless it could be made to appear that the process against the trustee was merely colorable, and for the purpose of giving the county court jurisdiction. This is not to be presumed; and, as the suit could not have been brought elsewhere, and the trustee was discharged, contrary to the plaintiff’s expectation, that will not effect the question.

Judgment affirmed.