
    (86 Hun, 511.)
    RAMSAY v. ROBINSON.
    (Supreme Court, General Term, Third Department.
    May 14, 1895.)
    Appearance—Arrest op Dependant.
    Where defendant in a civil action is brought before the justice under a warrant of arrest issued in the action, there is not such an appearance as dispenses with the necessity of service of summons.
    Appeal from Washington county court.
    Action by William Ramsay against William Robinson for the conversion of a sheep. Judgment was entered in favor of plaintiff, and defendant appeals.
    Reversed.
    Argued before PUTNAM, HERRICK, and STOVER, JJ.
    Willard Robinson, for appellant.
    Abner Robertson, for respondent.
   STOVER, J.

On the 1st day of May, 1894, the plaintiff made the following affidavit: ■

“Belcher, 1—5—94.
“I, William Ramsay, being duly sworn, depose and say that William Robinson did unlawfully remove one sheep and her lamb from off lands occupied by said William Ramsay to the said William Robinson’s land, and refused to return the same without any proof of said sheep and lamb being the property of said William Robinson. William Ramsay.
“Subscribed and sworn to before me this 1st day of May, 1894.
“John A. Gibson, Justice of the Peace.”

On this the justice issued a warrant of arrest, and, as the return certifies, on the 2d day of May the defendant was brought before the justice under arrest. The answer of the defendant was a plea of not guilty, and alleged that the defendant was the owner of the sheep mentioned in the complaint. The only “complaint” was the affidavit above referred to. Neither a copy of the warrant nor any paper was served upon the defendant at any time. On the appearance of the defendant under arrest, and his plea, the justice proceeded to take the testimony, and on the 5th day of May entered in his minutes a judgment in favor of the plaintiff. The return shows that on the 10th day of August the judgment was entered in the docket of the justice. The appeal was seasonably taken.

I think the justice was entirely without jurisdiction to enter the judgment. No summons was ever issued, or served upon the defendant, and his appearance before the justice under arrest, in the custody of a constable, and a plea of not guilty, cannot be said to be a voluntary appearance before the justice. An examination of the testimony further shows that there is no sufficient evidence to warrant a judgment in favor of the plaintiff, if an action was pending. The justice certifies that, the defendant having failed to prove that the sheep in question was not the property of the plaintiff, he thereupon proceeded to enter judgment against the defendant in the action. There is no sufficient evidence that plaintiff owned the sheep. The proceeding under review can scarcely be said to have been conducted under the form of law. Judgment must be reversed, with costs in this court and the county court. All concur.  