Summary
In Iron Clad Mfg. Co. v. Smith Sons (28 Misc. Rep. 172) the return showed the summons issued January 23, 1898, returnable February 3, 1898, and served January 24, 1898. Defendants defaulted and on appeal showed as error of fact that the copy of the summons delivered to the defendants was made returnable some several days prior to the date of the issue of the summons.
Summary of this case from Epstein v. ProsserOpinion
June, 1899.
Samuel S. Watters, for appellants.
Charles D. Cleveland, for respondent.
This appeal is taken by the defendants from a judgment entered against them by default. The return shows that a summons was issued on the 23d day of January, 1898, returnable on the 3d day of February, 1898, which summons, together with the verified complaint, appears by the affidavit of Benjamin B. Barnett, a person duly deputized to make the service, to have been served upon the treasurer of the defendant corporation on January 24, 1898. Upon the return day of the summons the defendants did not appear and judgment was rendered against them.
An appeal was thereupon taken, and the defendants submit affidavits containing statements upon which they ask for a reversal of the judgment upon the ground that the defendants were not served with the summons in this action. This appeal comes within the provisions of section 3057 of the Code of Civil Procedure, made applicable to appeals from Municipal Courts by section 1367 of the Consolidation Act, authorizing appeals from judgments rendered upon default where the appeal is taken for errors of fact. Burkhard v. Smith, 19 Misc. 31; Empire Hardware Co. v. Young, 27 id. 226.
The return of personal service upon the defendants made out a prima facie case of jurisdiction over the person of the defendants, yet, if the summons was not in fact served, no jurisdiction could have been in fact acquired. Fitch v. Devlin, 15 Barb. 47.
The respondent does not claim that service of the summons herein returned was made, it appearing that there was handed to and left with the treasurer aforesaid, a summons returnable at a time several days prior to the date of the issue of the summons returned.
No service as required by sections 2878-2879 of the Code of Civil Procedure was, therefore, made upon defendants and the court acquired no jurisdiction, in fact, of the persons of the defendants.
Judgment must, therefore, be reversed.
MacLEAN and LEVENTRITT, JJ., concur.
Judgment reversed, with costs to appellant.