Gere v. Gundlach
New York Supreme Court
APPEAL from an order denying a motion to set aside the attachment, judgment and subsequent proceedings, &c., in the second above entitled action.
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APPEAL from an order denying a motion to set aside the attachment, judgment and subsequent proceedings, &c., in the second above entitled action. On the 15th day of January, 1869, the plaintiffs in that action caused to be issued to the sheriff of Onondaga county a summons and complaint in that action, with venue in that county, and the sheriff returned thereto, on the same day, that he had made proper and diligent efforts to serve the same on the defendant; that he could not be found; and that the summons and complaint could not be served personally; and it also appeared by the return, that…
1Opinion of the Court
By the Court, Foster, J.
The proceedings on the part of Peters & Knapp, in obtaining their judgment, were not authorized by the statutes, and were irregular; and there is no doubt that upon application of the defendant, made within a reasonable time, the court would have set them aside for that reason. But nothing can be clearer than that for defects, or irregularities, not affecting the jurisdiction of the court, and where no fraud or collusion is imputed, the remedy for such defects is given to the party alone, and that another judgment creditor is not entitled to have such proceedings or…
2Cited by7 opinions
- Blossom v. . EstesNew York Court of Appeals · 1881
- Taylor v. ElliottIndiana Supreme Court · 1875
- Barron v. South Brooklyn Saw Mill Co.New York City Court · 1886
- Cossitt v. WinchellNew York Supreme Court · 1886
- Hogg v. LinkIndiana Supreme Court · 1883
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