
    FOSTER against WOOD.
    
      New York Common Pleas ;
    
      General Term, January, 1866.
    Summons.—Amendment.—Judgment against Joint Debtoes.— Eneobcing Judgment against Debtoes’ Peesonad Eepeesentattves.
    The omission to serve a copy of the complaint together with the summons, where the summons is in the form appropriate for serving both together, and to state in the summons the place of filing the complaint, does not affect the validity of the judgment entered thereon. It is amendable.
    Where the action is against joint debtors, a part of whom only are served, such defect in the summons is no reason for dismissing proceedings to enforce the judgment against those not served.
    A judgment entered against several joint debtors upon service of summons upon only a part of them, is a judgment in form only, as against those not served.
    The defendants not served are not “judgment debtors" within the meaning of the provision of the Code of Procedure (§ 380), which authorizes summoning the representatives of a deceased judgment debtor to show cause why the judgment should not be enforced against his estate in their hands.
    The proper remedy of the judgment creditor in such a case, is to present his demand to the executors or administrators, and if they refuse to pay it, or to' refer the claim, to bring his action thereon.
    Proceedings to enforce a judgment against the representatives of a deceased defendant.
    
      The plaintiff, Amasa S. Foster, summoned Rufus H. Wood, administrator, and Sarah E. Messer, administratrix, of Willard Messer, deceased, to show cause why a judgment he had recovered should not be enforced against the estate. The facts are fully stated in the opinion. The case was argued at General Term, in October, 1863, the first time. Later, a motion was made for a re-argument, which was granted. It was again argued in March, 1865.
    
      Augustus F. Smith, for the appellant.
    
      John M. Emerson, for the respondent.
   By the Court.—Daly, F. J.

An action was brought by the plaintiff against William Leavenworth and Willard Messer, in the life time of Messer, upon a joint obligation entered into by them, in which action Leavenworth alone was served with process, and a judgment was entered up against both, in conformity with the provisions of the statute in relation to joint debtors (2 R. S., 377; Code, § 136). After the entry of the judgment, Messer died, and the plaintiff summoned his personal representatives, the defendants, to show cause why the judg ment should not be enforced against the estate of Messer, in their hands, under the 376th section of the Code, which authorizes such a proceeding in case of the death of a judgment debtor after judgment. The defendants, in their answer, first denied the existence of any judgment, and then, as respects Messer, averred that he was not a judgment debtor; that as he had never been served with process, and had never appeared in the action, the judgment was not a judgment against him, except in form. The matter was referred to a referee, and he found, 1st. That the summons served upon Leavenworth was irregular, as it was in the form prescribed by law for the case in which a copy of the complaint is served with the summons, and that no complaint was served with it, nor did it state where the complaint would be filed. 2d. That Messer was not a judgment debtor of the plaintiff, and that the judgment was not a judgment against him, except in form.

The omission to serve with the summons a copy of the complaint, or, no complaint having been served, to state in the summons where it was or would be filed, did not render the judg ment void. It was an irregularity, of which advantage should be taken by motion, for the court acquired jurisdiction by the service of the summons, and a defect like this, in the form of it, was amendable (2 R. S., 424; Hallett v. Righters, 13 How. Pr., 43; Pequelet v. Darian, 2 Hill, 584; Martin v. Kanouse, 2 Abb. Pr., 393; Cook v. Dickerson, 1 Duer, 679; Keeler v. Betts, 3 Code R., 183; Bearson v. Earl, 17 Johns., 64; Tidd's Practice, 9th Lond. Ed., 130, 1032; Graham’s Practice, 2d ed., 132, 665). It was not a matter of which these defendants could avail themselves in this proceeding, and afforded no reasons for dismissing it.

As respects the second ground of defence, that Messer was not a judgment debtor, I think the referee decided correctly. It was held in Oakley v. Aspinwall (4 N. Y., 513), that an attachment against a non-resident debtor could not be sustained upon the petition of the attaching creditor, stating that he had a demand against the debtor arising upon a judgment, where it appeared that the judgment was entered up, as authorized by the Eevised Statutes (2 R. S., 377) against the defendant as a joint debtor,without the service of process upon him. The ground taken by Justices Bnoirsorr and Mullett, was that the judgment, as respects the debtor not served, had no other effect than the statute gives it, which is that it may be collected out of the personal property owned by him jointly with the defendant, or any of the defendants served. That for all other purposes it was not even mima facie evidence of any indebtedness on his part. That it created no liability, and was a judgment merely in form, and though Justice Jewett thought that the intention of the Legislature was to allow a remedy (an action) in form upon it, yet it had no force or effect as evidence of the plaintiff’s demand against the defendant not served.

The Code of Procedure (§ 136) has provided for the manner in which a judgment may be entered against joint debtors, and enforced against the joint property of all, but it has not repealed the provisions of the Eevised Statutes, which declare how far such a judgment shall be evidence of liability. It has provided (§ 375) that a joint debtor not originally summoned to answer the complaint may he summoned to show cause why he should not be bound by the judgment in the same manner as if he had been originally summoned; and has provided (§ 379) that he may make the same defences which he might have originally made to the action, except the statute of limitations; in this respect affording a mode for establishing his individual liability upon the judgment, and giving to the judgment in so far as he is precluded from the defence of the statute of limitations, more effect than it had under the Revised Statutes (Bruen v. Bokee, 4 Den., 56).

In the same chapter and in the section immediately following, provision is made for summoning heirs, devisees, legatees and personal representatives, in a certain time after the death of a judgment debtor, to show cause why the j udgment should not be enforced against the estate of the judgment debtor in their hands. This provision was manifestly intended as a substitute for the writ of scirefacias to obtain execution upon final judgment after the death of the judgment debtor (Alden v. Clark, 11 How. Pr., 213); and it appears from the notes of the codifiers, that the reason why it was incorporated in this chapter was because they had changed the form of proceeding in such a case, from scire facias, which was in the nature of an action, and made it comport with the proceeding against joint debtors, which is by a summons to show cause, that there might be a more easy and expeditious mode of procedure in such cases, than by scire facias (First Report of Codifiers, 1848, pp. 236, 237). There is nothing to indicate that it was the intention of the Legislature that a proceeding of this nature might be resorted to against the personal representatives of a deceased joint debtor, against whom a judgment had been entered without the service of process upon him, but, on the contrary, it is evident that what is meant by the term “judgment debtor ” in this section is one against whom the judgment is conclusive and final. Upon scire facias the defendant could not plead any matter which he might have pleaded to the original action (McFarland v. Irwin, 8 Johns., 77; Cook v. Jones, Cowp., 727). And in this proceeding the personal representatives of the judgment debtor when summoned, are limited to a denial of the judgment, or the setting up of a defence which may have arisen subsequently (Code, § 379). The right of the party summoned to make any defence which he might have made to the action, is allowed only in proceedings under the 375th section; and that section provides only for the summoning of a joint debtor to show cause why he should not be bound by the judgment. The one is a proceeding by means of which a joint debtor may be made a judgment debtor, the other a proceeding by which a judgment debtor’s estate, after his decease, may be subjected to the payment of the judgment against him; distinct and different proceedings, and which are not to be confounded with each other.

That such was the intention of the Legislature is probable for another reason. There was no merger in the judgment, of the the original indebtedness, as against Messer., (Oakley v. Aspinwall, supra). He was a joint debtor and nothing more, and the rule is well settled that if one of the parties to a joint contract dies, his personal representatives are, in law, discharged from liability, and the survivor alone can be sued (Grant v. Shuster, 1 Wend., 148). Eor is there any remedy in equity, unless the survivor should be insolvent, which it is incumbent upon the judgment creditor to allege and prove (Lawrence v. The Trustees of the Leake & Watts Orphan House, 2 Den., 587).

How in the proceedings provided for in the chapter under •consideration, the judgment creditor merely serves upon the debtor a summons to show cause, and the debtor must answer within twenty days, setting up his defence, if he has any. That such a proceeding was not intended to apply to the personal representatives of a deceased joint debtor is obvious, as the very proceeding itself shows that they are, in law, discharged from all liability; and if they are chargeable in equity, then the burden is upon the judgment creditor to establish it by bringing an action. The proper remedy of the plaintiff was to present his claim to the personal representatives, and if they would not refer it, but disputed it, to bring his action (2 R. S., 88, 89, §§ 35, 36, 37, 38).

The report of the referee should be confirmed.

Judgment accordingly. 
      
       Present, Daly, F. J., and Brady and Cardozo, JJ.
     