Haight v. Potter

H. T. Kellogg, J.:

In this action a Justice’s Court rendered a judgment for a sum of money in favor of a plaintiff against a defaulting defendant, not having before it a constable’s return or other proof showing the service of a verified complaint, without receiving proof of the plaintiff’s case, and, therefore, without complying" with the provisions of section 2891 of the Code of Civil Procedure. A Justice’s Court acquires jurisdiction to render a judgment not alone by the service of a summons, but only when, after such service, a proper return thereof has been made by a constable to the justice. (Code Civ. Proc. § 2885; Manning v. Johnson, 7 Barb. 457; Sherwood v. Saratoga & Washington R. R. Co., 15 id. 650; Syracuse Molding Co. v. Squires, 61 Hun, 48; Moore v. Taylor, 88 App. Div. 4.) By a parity of reasoning he acquires no jurisdiction to proceed to judgment without proof of the service of a verified complaint. (Code Civ. Proc. § 2891.) This was held in International Seed Company v. Hartmann (65 App. Div. 478), where the court, "writing through Willard Bartlett, J., said: “ The constable’s certificate of service relates solely to the summons, and contains no statement whatever in reference to the complaint. Upon appeal to the County Court the judgment in favor of the plaintiff was reversed on the ground that the justice was without jurisdiction to render judgment upon the verified complaint in the absence of due proof by the constable’s certificate or otherwise that such complaint had been served upon the defendant. I have no doubt that the decision of the county judge is right.” It follows that in the case at bar the justice originally had no right to render judgment in favor of the plaintiff.

It remains to be inquired whether subsequent proceedings have cured the error of the justice. The defendant, who appeared specially, served a notice of appeal from the judgment to the County Court. Eleven days thereafter, in compliance with section 3053 of the Code of Civil Procedure, the justice made a return of his proceedings to that court. The return disclosed no proof that a verified complaint had ever been served. Thereafter the justice, without application made to him, voluntarily filed with the County Court a so-called amended return, by which he returned an affidavit of a constable to the effect that he had served a complaint with the summons. This affidavit was dated more than seventy-five days after the original return had been made. No application was made to the County Court to permit the so-called amended return, or the affidavit of the constable to be filed with it. No application was made to the justice to permit the filing of the affidavit with the original records of his proceedings. No application was made to the County Court to remand the case to the justice for the return of any proof of service filed with him after the judgment wa s rendered. Clearly an affidavit cannot be added to the papers upon which a judgment is founded, after its rendition, without application of some kind to that end made to some court, so that opportunity to oppose might be given. It has been held that a justice has no right voluntarily to file an amended return. (Zabriskie v. Wilder, 14 Abb. N. C. 325.) No proper proceedings having been taken to amend the original proceedings, it follows that the original judgment cannot stand, and that the judgment of the County Court affirming the judgment of the Justice’s Court should be reversed.

The judgment of the County Court affirming the judgment of the Justice’s Court and the judgment of the Justice’s Court are reversed, with costs.

All concurred, except John M. Kellogg, P. J., dissenting, with a memorandum.