Anonymous
New York Supreme Court
—This was a motion by defendant to set aside a judgment and subsequent proceedings for irregularity merely. The capias was returned as though personally served on the defendant, (in August, 1848,) by the sheriff; although it appeared that, in fact, it was not served on him at all, but, if served, was on the wrong person. The proceedings were all regular, on the part of the plaintiff, to obtain judgment.
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—This was a motion by defendant to set aside a judgment and subsequent proceedings for irregularity merely. The capias was returned as though personally served on the defendant, (in August, 1848,) by the sheriff; although it appeared that, in fact, it was not served on him at all, but, if served, was on the wrong person. The proceedings were all regular, on the part of the plaintiff, to obtain judgment. There was no affidavit of merits; nor any collusion shown between the plaintiff and the sheriff or his deputy.
1Opinion of the Court
Willard, Justice,
held that, as between the plaintiff and defendant, the judgment was regular, and there being no affidavit of merits, it could not be disturbed. The return of the sheriff to the capias was matter of record, and could not be impeached in that collateral way, especially where there was no pretence of fraud or collusion. (See Evans v. Parker, 20 Wend. 622; Baker v. McDuffie, 23 Ib. 289; Mentz v. Hanman, 5 Whart. 150.) Motion denied, with $10 costs.
2Cases cited2 opinions
- Mentz v. HammanSupreme Court of Pennsylvania · 1840
- Evans v. ParkerNew York Supreme Court · 1838
3Cited by1 opinion
- Williams v. Van ValkenburgNew York Supreme Court · 1858