
    Richard Bennett, Appellant, v. Charles Cole, Respondent.
    Third Department,
    June 30, 1916.
    County Court — appeal from justice’s judgment —jurisdiction where sections 3046 and 306S were not complied with by appellant — judgment vacated.
    A judgment obtained in a Justice’s Court by irregular procedure cannot be vacated by like procedure in the County Court.
    Under section 3046 of the Code of Civil Procedure, a County Court only acquires jurisdiction to consider and decide an appeal from a judgment rendered by a justice of the peace when the appeal is taken within twenty days from the date of the entry of the judgment in the justice’s docket and is brought on for argument upon an eight days’ notice as provided by section 3063 of the Code of Civil Procedure.
    Where, on appeal to the County Court from a judgment obtained in Justice’s Court, it appears that the notice of appeal was served more than nine months after the rendition of the judgment, and that no notice ' of argument was ever served, an order denying a motion to vacate and set aside the judgment on the ground that the court was without jurisdiction to hear the appeal and grant judgment will be reversed.
    Appeal by the plaintiff, Richard Bennett, from an order of the County Court of Hamilton county, entered in the office of the clerk of said county on the 28 th day of February, 1916, denying his motion to vacate and set aside the judgment of said court entered in the office of the clerk of the county of Hamilton on the 5th day of October, 1915.
    
      Frank Hurley, for the appellant.
    
      W. H. Bass, for the respondent.
   Howard, J.:

This action was begun in a Justice’s Court in the town of Long Lake, Hamilton county-, by the personal service of a summons upon the defendant. On the return day, September 11, 1914, at two p. M., the parties appeared in person before the justice of the peace at Raquette Lake and pleaded orally. The case was adjourned to Oótober fifteenth, at Long Lake. In the meantime the justice was taken ill, and on October 7, 1914, he wrote to each of the litigants, telling them of his indisposition and his inability to try the case on the adjourned day. Later he met each of the parties, and by personal interview with them fixed November sixteenth, at three p. m. as the time, and Baguette Lake as the place, for the trial. A jury having been demanded by the defendant at the time of the joinder of issue, a venire was issued by the justice returnable November sixteenth, containing the names of six jurors. On November sixteenth, at three P. m., at Baguette Lake, the justice was present, the jurors attended and the plaintiff appeared, but the defendant did not appear. After having waited an hour, the justice rendered a judgment in favor of the plaintiff and against the defendant for twelve dollars and fifty cents damages and two dollars costs. From that time until the 15th of September, 1915, more than nine months, the matter slumbered. On the latter date the defendant served a notice of appeal upon the plaintiff and the justice of the peace. This notice was dated September tenth, and was served by mail. No notice of argument was ever served upon the plaintiff. On the 5th day of October, 1915, the defendant’s attorney appeared at a regular term of the County Court of Hamilton county and presented the appeal to the court ex parte and took a judgment reversing the judgment of the justice of the peace. Subseguently the plaintiff appealed to the Appellate Division but withdrew that appeal and moved before the County Court for an order vacating the judgment of the County Court on the grounds that the court was without jurisdiction to hear the appeal and grant judgment. This motion was denied and it is from the order denying the motion that this appeal is taken.

Much of the procedure before the justice was irregular, so much so that the judgment ought not to stand. But a judgment procured by irregular procedure in a Justice’s Court cannot be vacated by irregular procedure in the County Court. Section 3046 of the Code of Civil Procedure provides that the appeal from a judgment of a justice of the peace must be taken within twenty days after the entry of the judgment in the justice’s docket; except that in a case where the defend ant did not appear in the action and the summons was not personally served upon him, he may appeal within twenty days after personal service upon him of notice of the entry of the judgment. In this case the defendant did appear personally in the action and the summons was personally served upon him. Therefore, his time to appeal was limited to twenty days after the entry of the judgment, which was November 16, 1914. The attempt of the defendant more than nine months thereafter to appeal was an absolute nullity. It was wholly without any statutory warrant or judicial sanction. So far as the statute goes it might as well have been attempted nine' years later as nine months later. But if the defendant labored under the mistaken notion that he did not appear personally in the action and was not personally served with the summons, and, therefore, had a right under section 3046 of the Code to appeal after the expiration of twenty days after the entry of the judgment in the justice’s docket, even then he wholly ignored the provisions of the Code in bringing on his supposed appeal for argument. Under section 3062 the appeal could only have been brought on for hearing by a notice of not less than eight days. No notice whatever was given and the plaintiff was wholly ignorant of the time and place o'f the argument and of the fact that the defendant was about to appear in court to ask for a reversal of his judgment. The plaintiff never had his day in court.

It follows that the County Court acquired no jurisdiction in the case; that is, acquired no right to hear the supposed appeal. “Jurisdiction * * * is the power to consider and decide one way or the other, as the law may require.” (Geneva Furniture Co. v. Karpen, 238 U. S. 259.) A County Court only acquires power to “consider and decide” an appeal from a Justice’s Court when the appeal is taken within the statutory twenty days from the date of the entry of the judgment in the justice’s docket and he can only “consider and decide” the appeal when it is brought on for argument by an eight days’ notice. Neither of these requirements was observed, hence the county judge was not clothed with any power to consider the matter or pass judgment upon it. No matter how apparent the irregularities before the justice of the peace may have been, the County Court never having been vested with jurisdiction, it could not vacate those irregularities or even consider them. As soon as this situation was pointed out to the county judge it was his duty to vacate his judgment rendered without jurisdiction.. The plaintiff proceeded properly in asking the county judge to vacate the judgment, and the failure of that court to do so was error.

It follows that the order of the County Court should be reversed, with costs.

All concurred; Lyon and Cochrane, JJ., in the result on the ground that notice of hearing of the appeal was not given in the County Court.

Order of the County Court reversed, with costs.  