
    De Witt Decker, Plaintiff, v. Rudolph Ekelman, Defendant.
    (County Court, Chemung County,
    July, 1896.)
    1. Service — Plaintiff cannot serve process, although a constable.
    The plaintiff in an action in a court not of record cannot serve the summons although he is a constable,
    3. Habeas corpus — Jurisdiction.
    The court on habeas corpus proceedings has power to ascertain whether the court that issued the judgment under which the defendant is confined had or did not have jurisdiction.
    
      Habeas Corpus proceedings.
    J. John Hassett, for petitioner.
    loman & Byrne, opposed.
   - Tatlor, J.

The above-entitled action was' commenced in the City Court of the city of- Elmira, by-the service of a summons upon the defendant by the-plaintiff in person, who, at the time of-such service, was a constable of the city of Elmira. The plaintiff, as constable, made a proper return upon the said summons, and on the return day thereof, the.defendant failing to appear, the-plaintiff made proof of his cause of action, and judgment was rendered by said .City Court against said defendant -on default in tort. The defendant did not appeal from said judgmént, and after the expiration of twenty days an execution against the person of the defendant was issued out of said City Court, and he was arrested thereunder, and is now confined in the Chemung county jail. On the 8th day of August, 1896, he presented his petition for a writ of habeas corpus, and a writ' was issued returnable- on the 10th day of August, 1896, at 2 o’clock p. in. At that time the plaintiff appeared' by Bowman & Byrne, his attorneys; and the defendant was represented by J. John Hassett.

Counsel for the plaintiff raised the preliminary objection-that' the petition did not state facts sufficient to authorize an issuance of a writ, but finally withdrew said objection, and all objections to said petition, and consented to argue the question upon the merits.

The facts were conceded, upon the argument, so far as they related to the service of the summons; but it was contended by the plaintiff’s counsel that the plaintiff being a constable had the right to serve said summons, and that the City Court obtained -and had jurisdiction of the person of the defendant, and that its judgment was final and conclusive, and, therefore, the defendant was not entitled to the writ nor to his discharge, because it appeared upon the face of the papers that he was detained under the lawful judg-' ment of -a competent tribunal.

The primary question is whether the service -of the summons by the plaintiff in person gave the City Court jurisdiction to render the judgment, and upon that question we must adhere to the decision heretofore made by us in the case of Warring v. Keeler, 11 Misc. Rep. 451.

The facts of that case are identical with this, except that the plaintiff in that action was not a constable, but had been deputized by the justice to serve the summons. We gave the question under consideration in that case a very thorough investigation and examined all of.the cases which were presented to our attention by the learned counsel that argued it, and all of the authority that we, ourselves, could find that bore upon the question, and we came to the conclusion that the legislature intended by the language incorporated in section 3156 of the Code of Civil Procedure to prohibit parties from serving their own process as provided in that section. I do not think the fact that the plaintiff was a constable gives him any greater rights or authority to serve a process issued in his own name, because the language of the statute is imperative and is intended to prohibit parties from serving their.own process. Therefore, I think I must hold in this ease, as I held in Warring v. Keeler, that the City Court, by reason of this defective and unauthorized service, obtained no jurisdiction of the person of the defendant, and, therefore, could not lawfully render any judgment against him, and had no legal right to issue the execution under which he is imprisoned and is now detained. Having arrived at this conclusion, I think that it follows that the contention of the plaintiff, that the defendant is held by virtue of the judgment of a competent tribunal, is erroneous, for the reason that there is no lawful judgment in this case, and under the doctrine laid down in the case of People ex rel. Tweed v. Liscomb, 60 N. Y. 559, under this writ I have the right to ascertain whether the court that issued the judgment under which the defendant is confined had or did not have jiu’isdiction, and having found that in the negative, and, following the decision of Tweed v. Liscomb, supra, the defendant must be discharged.

An order may, therefore, be entered directing the sheriff of Chemung county to discharge the defendant.

Ordered accordingly.  