Stewart v. Smith
New York Supreme Court
Error from the Montgomery common pleas. Smith sued Stewart in a justice’s court and judgment was rendered in his favor. Stewart sued out a certiorari, to which the justice made a return, that on the 21st January, 1837, he issued a summons in favor of Smith against Stewart, returnable on the 27th January, which was returned personally served; that on the day of the return of the summons, the plaintiff appeared, but the defendant did not appear; that the plaintiff declared,…
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Error from the Montgomery common pleas. Smith sued Stewart in a justice’s court and judgment was rendered in his favor. Stewart sued out a certiorari, to which the justice made a return, that on the 21st January, 1837, he issued a summons in favor of Smith against Stewart, returnable on the 27th January, which was returned personally served; that on the day of the return of the summons, the plaintiff appeared, but the defendant did not appear; that the plaintiff declared, and that the cause was then adjourned until the next day. That at the time of the adjournment the plaintiff again…
1Opinion of the Court
By the Court,
Cowen, J.
The suit was by summons; the return of the justice does not set it out, nor does it set out the return to the summons, farther than that it was returned personally served. No day of sei vice is *292mentioned, whether one day or six days before the return day docs not appear. The statute is positive that the day of service shall be returned (2 R. S. 228 § 16). It is a regular return only that can give jurisdiction.
Again; the summons itself mentions no place of appearance, as the return stands (id. § 14); nor that the justice held his court at the place mentioned in the…
2Cited by12 opinions
- Reno v. . PinderNew York Court of Appeals · 1859
- Sagendorph v. ShultNew York Supreme Court · 1863
- Jackson v. SherwoodNew York Supreme Court · 1868
- Board of Commisioners of Excise v. Doherty, New York County Courts1857
- Bolton v. JacksThe Superior Court of New York City · 1868
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