Wheeler v. Lampman
New York Supreme Court
IN ERROR, on certiorari to a justice’s court. The defendant in error brought an action, in the court below, the plaintiff in error, by summons, which was returned by one De Grote, who is stated to be a constable, in these words; J b 56 personally, as the law directs, by. me, S* De GroteS* The cíefendant below, by his attorney, appeared on the return of the for the purpose of objecting to the constable’s return, and the objection was made and overruled, by the justice, who…
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IN ERROR, on certiorari to a justice’s court. The defendant in error brought an action, in the court below, the plaintiff in error, by summons, which was returned by one De Grote, who is stated to be a constable, in these words; J b 56 personally, as the law directs, by. me, S* De GroteS* The cíefendant below, by his attorney, appeared on the return of the for the purpose of objecting to the constable’s return, and the objection was made and overruled, by the justice, who decided that the return was sufficient. The plaintiff below then declared that the defendant had passed to him a…
1Per curiam
e Two exceptions are taken to the justice’s return: 1. That the constable’s return to the summons was insufficient; and, 2. That there was no proof that the bill was a forgery.
As to the first point. The statute requires, “ that the serving such summons, shall, upon the oath of his office, thereupon the time and manner he executed the same, &c.” The appearance of the plaintiff below, merely for the purpose of making the objection, was not a waiver of the irregularity of the return, and as the statute is peremptory that the time when the summons is served shall be returned thereupon, its…
2Cited by21 opinions
- Malcom v. RogersNew York Supreme Court · 1823
- Jeffries v. WrightSupreme Court of Missouri · 1873
- Dailey v. KennedyMichigan Supreme Court · 1887
- Converse v. WarrenSupreme Court of Iowa · 1856
- Dewey v. GreeneNew York Supreme Court · 1847
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