
    Thomas Kingsford, Resp’t, v. George A. Butler, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    Justice’s court—Default—Attachment.
    The summons herein was not personally served, but defendant’s property was attached under a warrant issued upon an affidavit which was insufficient to give the justice jurisdiction. Upon the return day the justice entered judgment by default, which was affirmed by the county court. Held, error; that the justice has no power under § 2918 of the Code to enter judgment by default in such a case.
    Appeal from judgment of the Oswego county court, affirming judgment of a justice’s court in favor of plaintiff, entered upon a default.
    
      D. P. Lester, for app’lt; L. W. Baker, for resp’t.
   Parker, J.

The facts disclosed by the appeal book in this action are substantially as follows: A justice of the peace issued a summons in favor of this plaintiff against the defendant upon the 13th day of August, 1892. At the same time he issued a warrant of attachment against the defendant’s property. The attachment was levied by the constable on certain personal property of the defendant, and a certified copy of it, and of an inventory of the property so levied upon, and of the summons, were each left by the constable at the defendant’s last place of residence, with a person of suitable age and discretion. Ho personal service of the summons was ever made upon the defendant, nor any service other than as above stated. The affidavit upon which the warrant of attachment was issued was wholly insufficient to give the justice jurisdiction. The case of Bump v. Daheny, 36 St. Rep., 114, is an authority precisely in point on that question, and its insufficiency is practically conceded on this appeal. Upon the return day of the summons no one appeared on the part of defendant, and judgment was taken against him by default, in plaintiff’s favor, for $47.25, debt and costs. The defendant subsequently appealed to the county court of Oswego county, where the judgment of the justice was affirmed, and from such judgment this appeal is brought

There is no statute giving a justice of the peace authority to enter judgment against a defendant on default unless the summons has been personally served upon him, except the provisions of § 2918 of the Code. By that section it is provided that when a defendant does not appear, and the summons has not been personally served upon him, nevertheless judgment may be rendered against him if his property “ has been duly attached by virtue of a warrant that had not been vacated." The section further provides that the judgment so rendered is only presumptive evidence of indebtedness, and that it can be satisfied by execution only against the property so attached. In the case at bar, therefore, the justice had no jurisdiction to enter judgment against defendant, unless his property had been duly-attached by virtue of a warrant that has not been vacated.” It is true that the warrant which the justice assumed to issue had never been vacated, but can it be said that defendant’s property had eAmr been “duly attached" by virtue of it? I think not. The attachment was entirely unauthorized. It ought never to have been issued, and the property of the defendant ought never to have been taken upon it. By § 2916 the justice is given authority, “ on his own motion,” to vacate the attachment on the return of the summons “ if he deems the papers on which it was granted insufficient to authorize it." Eeading all these provisions together, I think it is the duty of a justice, on the return of a summons that has not been personally served, to enter judgment by default only when the record shows an attachment lawfully issued and regularly executed. For the-want of a personal service of summons he has never acquired jurisdiction over the person of defendant, and for the want of an attachment, lawfully issued, the proceeding against the property of defendant is utterly unauthorized. Not even as against the property attached has- he acquired any jurisdiction, for, clearly, he cannot do so by issuing a process he had no authority to issue, nor by omitting to vacate such a process after-having assumed to issue it. On the return of the summons, therefore, the justice should have treated the case as if no attachment had ever been issued, and his entry of judgment by default against defendant was, therefore, unauthorized.

The respondent’s counsel claims that the defendant does not-dispute the validity of the debt; that the errors alleged are purely technical; and that, therefore, under § 3063 of the Code, the county court correctly affirmed the judgment. The difficulty with that argument is that the error complained of is not by any means a technical one. The question presented by this appeal is whether a justice of the peace may enter judgment against a party on default without first having, by some lawful process, acquired jurisdiction to do so. In the course of this action, the defendant has not, as yet, been called upon to .question the validity of the-plaintiff’s claim. When he shall have been lawfully summoned into court, or when his property shall have been lawfully subjected to the judgment of the court, by the service of a lawful process against it, it may be that he will successfully defend against the plaintiff’s claim ; and, until he has been called upon to-make his defense, it can hardly be said that “justice has been done" by rendering any judgment whatever against him. It does not appear, therefore, that the amount of the judgment, even, is correct, and it does appear that the justice had no jurisdiction-to render any judgment whatever against defendant. To such a case § 3063 does not apply, and the judgment of the justice should have been reversed. The judgment of the county court and of the justice should be reversed, with costs.

Merwin, J., concurs in the result; Hardin, P. J., not sitting.  