Wood v. Randall
New York Supreme Court
• Error to the Chenango C. P. Wood and Per Lee sued Randall before a justice, and recovered judgment for $49,08 damages, besides costs 5 whereupon Randall appealed to the common pleas. It appeared from the justice’s return that the suit was commenced by attachment retainable four days from date and served three days before the time fixed for the return thereof.
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• Error to the Chenango C. P. Wood and Per Lee sued Randall before a justice, and recovered judgment for $49,08 damages, besides costs 5 whereupon Randall appealed to the common pleas. It appeared from the justice’s return that the suit was commenced by attachment retainable four days from date and served three days before the time fixed for the return thereof. The justice’s return contained a copy of the affidavit on which the attachment issued, in these words: “ State of New-York: .Chenango county, ss. Samuel R. Per Lee, of &e. being duly sworn saith, that Roswell A. Randall is justly…
1Opinion of the Court
By the Court, Cowen, J.
The plaintiffs contended that the proceeding below was for fraud, and not on the ground of the defendant’s non-residence. In this view an affidavit was necessary. But the affidavit in the present case will not stand the test of law; (Ex parte Robinson, 21 Wend. 673; Connell v. Lasscells, 20 id. 77, 79 and cases cited; Comfort v. Gillespie, 13 id. 404;) nor was there the proper time between the service and return of the process. (2 R. S. 202, 2d ed. § 295; id. 163, § 31; Johnson v. Moss, 20 Wend. 146, 7.) The common pleas were right, therefore, in holding the proceedings…
2Cases cited3 opinions
- Comstock v. PorterNew York Supreme Court · 1830
- Ex parte RobinsonNew York Supreme Court · 1840
- Rawson v. AdamsNew York Supreme Court · 1819