
    Michael A. Pearce, App’lt, v. Samuel K. Nester, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    1. Justices’ courts—Summons—Service of—Code'Civ. Pro., §2878—Ap-peal TO COUNTY COURT WITH DEMAND FOR NEW TRIAL—EFFECT OF IRREGULARITY TO SERVE.
    The service of a justice’s summons was made hy delivering to the defendant the original summons instead of a copy, as required by § 2878 of the Code of Civil Pro., and the constable appeared before the justice the day before the return day and made his return upon a summons then, drawn up >y the justice, by endorsing on it “The within summons was personally served on the defendant’’ * * * " by delivering to him a copy thereof.” The defendant appeared on the return day and moved that the complaint be dismissed, on the ground that no legal* service ol the summons had been made upon him for the reason that it was served by delivering to him the original summons and not a copy, and that the constable appeared before the justice on the day before the return day and made his return upon a summons then drawn by the justice. The motion was denied, and the defendant answered the complaint. The case was then adjourned by consent to a subsequent day, when the defendant failed to appear, and upon evidence on the part of the plaintiff, the justice rendered judgment in his favor for $7:i 94-100. The defendant appealed to the county court, demanding in his notice of appeal a new trial. The county court reversed the judgment of the justice on the ground that the service and return of the summons were not made in the manner requisite to confer upon him jurisdiction within section 2878 of the Code. Held (1), that the defendant after the denial of his motion to dismiss the complaint, having answered it on the merits, his objection was not by thus joining issue waived, but it was afterwards available as an objection merely and not because there remained a want of jurisdiction. By reason of the appearance and answer the court had jurisdiction to proceed to judgment, which was not void, although subject to review and reversal for the error produced by the objection taken and the ruling upon it.
    3. Same—Effect of demanding hew trial in county court—Waiver OF IRREGULARITIES IN SERVICE.
    
      Held (2), that the defendant having demanded in his notice of appeal a new trial, the case goes into the county court upon the issue made by the pleadings as if originally commenced there, and all mere irregularities in the process and service are waived by the defendant appearing and answering on the merits and by his demand for a new trial. The purpose of the provision for such an appeal is a new trial in the county court, and it takes the place of an appeal to the common pleas under the former practice. Any objection to the manner of service of the summons and the ruling upon it are not legitimately in the appellate court for consideration. For the purpose of a new trial the return presents the issue relieved from the error arising from any such objection. Although the process and proof of service accompany the issue to make the record complete in the county court by showing the manner in which the action was instituted and the defendant originally brought into court, yet the proceedings which the statute directs the justice to return are so limited as not to embrace any objections taken before him to the process or its service.
    3. Same—How objection to service of summons taken on appeal to county court—Code Crv. Pro., § 3053.
    
      Held (3), that if the defendant desired to avail himself of the objections made at the trial before the justice, as to the service of the summons and its return by the constable, he should have taken his appeal without a demand for a new trial in the appellate court. In such case the justice is required to return all the proceedings, including the evidence and judgment. Code Civ. Pro., § 8053. Such appeal brings up .for review all the proceedings and is a substitute for the. former review of justice’s judgments by eertiora/ri.
    
    
      4. Same—Return of justice—What to contain.
    (4) The cases of Stevens v. Benton (2 Lans., 156) and Mwxon v. Seed (8 Hun, 618) were decided before the present statute was adopted. Under the law as it then was. on an appeal taken for a new trial the justice was required to return the process with proof of service, the pleadings, the proceedings and judgment, together with a brief statement of the amount and nature of the claim. Code Pro., § 360. The return em- ' braced all the proceedings. The return of the evidence was not then and is not now required.
    ■ Appeal from judgment of Ontario county court, reversing a justice’s judgment.
    
      Charles 8. Baker, for app’lt; D. B. Baekenstose, for resp’t.
   Bradley, J.

The plaintiff recovered $73.94, in justice’s court. The defendant appealed to the county court, demanding in his notice of appeal a new trial. And upon the defendant’s motion the justice’s judgment was reversed by the county court, on the ground that the service and return of the summons issued by the justice were not made in the manner requisite to confer upon him jurisdiction of the person of the defendant within the statute, which provides that Sh personal service of the summons must be made by delivering a copy thereof to the defendant.” Code Civ. Pro., § 2878. And that “A constable who serves a summons must, at or before the time when the same is returnable, make and deliver to the justice a written return thereof, under his hand, stating the time when, and the manner in which, he served it.” Id., § 2885. The summons was issued November 24th, and the return day mentioned in it was December 5, 1884. The return of the constable was made December 3, 1884, endorsed upon what purported to be the summons and was as follows: “ The within summons was personally served on the defendant Samuel E. Nester, on the 26th day of November, 1884, at the town of Geneva, by delivering to him a copy thereof. Albert Wheeler constable.” This was apparently a compliance with the statute. By the justice’s return, it appears that on the return day, the defendant appeared and moved that the suit be dismissed as against him, on the ground, that no legal service of the summons had been made upon him, for the reason that it was served by delivering to him the original summons and not a copy, and that the constable appeared before the Justice December 3, 1884, and made his return upon a summons then drawn by the justice; that no proof was then offered by the defendant in support of his motion, nor did the plaintiff waive proof of or concede the alleged fact upon which the motion was founded, but that the justice did then in open court state that the constable had failed to-return the original summons, and had made his return, on a summons made by the justice December 3, 1884; and that the defendant’s motion was denied and exception taken. The ■defendant then answered the plaintiff’s complaint. The action was by consent of the parties, adjourned to a subsequent day, when the defendant failed to appear, and upon evidence on the part of the plaintiff, the justice rendered judgment. The motion for reversal of the justice’s judgment was made and granted upon that return.

The first inquiry is whether it appeared by the justice’s return that there was any irregularity in the service and return of the summons. The statement returned as made by the justice in presence of the parties, on the return day, does not correspond with what is represented by the return of the constable, set forth in the return of the justice. The act of making the return by the constable on a previous day was no part of the proceeding before the justice on the return day, although that was the proper time to raise the question of its validity for jurisdictional purposes. It may be assumed that the statement made by the justice, in view of his supposed knowledge of the fact, was sufficient to enable the defendant to raise the question if such statement had the support of the fact. The question here is not whether the defendant was misled by the statement made by the justice, but it is whether the requisite service and return of the summons had not been made to confer jurisdiction. The fact upon which the defendant relies to support his contention has not been returned by the justice. While he sets forth in his return what purports to have been a proper return of service by the constable, he also returns what he said on the subject when the parties appeared before him on a subsequent day. This is so far distinguishable from the fact itself that the latter was not represented by the justice’s return upon the review in the county court. If this view is correct it is unnecessary to proceed further. But. assuming, without holding, that a return of service by the constable cannot be made effectual to give jurisdiction of the person =of a defendant when he has, by way of' service, delivered the original summons to the latter, and that it so appeared in this case, the inquiry arises whether the question was available to the defendant on the appeal taken by him to the county court. After his objection was taken, he answered the complaint on the merits. His objection was not, by thus joining issue, waived (Dewey v. Greene, 4 Denio, 93), but it was after wards available as an objection merely, and hot because there remained a want of jurisdiction. N. Y. and E. R. R. Co. v. Purdy, 18 Barb., 574. By reason of the appearance and answer, the court had jurisdiction to proceed to judgment, which was not void. It was subject to review and' reversal for the error produced by the objection taken and the ruling upon it. Wood v. Randall, 5 Hill, 264, 271.

And the question would have been available to ’ the defendant upon an appeal taken by him without demand of a new trial. In such case the justice is required to return-all the proceedings, including the evidence and judgment,. Code Civ. Pro., § 3053.

Such an appeal brings up for consideration all the proceedings, and is a substitute for the former review of justice’s judgment by certiorari. .The return upon appeal for a new trial is more qualified, and legitimately presents, as: applied to this case, only the summons with the proof of service, the pleadings, the proceedings upon the trial, the judgment and a brief statement of the amount and nature of the claims litigated. Id.

The purpose of the provision for such an appeal is a new trial in the county court, and it takes the place of an appeal to the common pleas under the former practice. The-evident policy of the statute in the one case, was to review the proceedings and trial had before the justice, and in the other, to provide for'a trial de nova, and in the latter case the proceedings, designated as such, before the justice to be brought into the county court -by the return, are limited to those upon the trial. And none other than such as the statute directs the justice to return are legitimately in his return for any purpose upon such appeal. Malone v. Clark, 2 Hill, 657; Swartwout v. Roddis, 5 id., 118; Wood v. Randall, id., 264.

The proceedings before the justice, the return of which the statute directs, are so limited as not to embrace any objections taken before him to the process or its service. The action upon the appeal for a new trial goes into the county «court upon the issues made by the pleadings. The process and proof of service accompany the issue to make a «complete record in the county court by showing the manner the action was instituted and the defendant originally brought into court. And the defendant appearing before the justice, and there answering the plaintiff’s complaint, waives any jurisdictional defect in the process or its service to which no objection is taken. Clapp v. Graves, 26 N. Y., 418.

For the purpose of a new trial the return presents the issue, relieved from the error arising from any such objection. At all events, in the view taken, such objection and ruling upon it are not on such an appeal legitimately in the appellate court for consideration. In the court below it was held that the objection was available because it went to the validity of the service of the process and was jurisdictional. And in support of the proposition were cited Stevens v. Benton (2 Lans., 156), and Maxon v. Reed (8 Hun, 618).

Those cases seem to announce the doctrine so applied by the county court in this case. And we might feel required to follow them if the present statute was not distinguishable from that existing when those cases arose and were decided. At that time in case of an appeal taken for a new trial, the justice was required to return.the process, with proof of service, the pleadings, the proceedings and judgment, together with a brief statement of the amount and nature of the claims litigated. Code Pro., § 360. The return then properly embraced all the proceedings. The return of the evidence in such case was not then and is not now required.

The apparent design of the present statute in providing for these two methods of appeal was to enable the defeated party, at his election, in all cases to review the proceedings and trial before the justice, or, in those which permitted it, to take a new trial of the issue upon the merits in the appellate court.

In the latter the new trial is dependent upon the demand ■of it in the notice of appeal (Code, § 3068), and on the expiration of ten days after the filing of the justice’s return, “the action is deemed an action at issue in the appellate court; and all the proceedings therein * * * are the same as if the action had been commenced in the appellate court except as otherwise specially prescribed.” Id., § 3071. By force of the statute the action was pending in the county court as effectually as if originally commenced there. The appeal has the effect during its pendency to supersede the justice’s judgment. In this respect the effect of the appeal differs from that for the review merely. In the latter case the. judgment of the justice stands as-such until it is reversed or merged in that of affirmance in the appellate court. And in view of the statute the reason of the rule which excludes from review upon an appeal in which a new trial is. properly demanded the errors in the proceedings before the justice, applies as well to those arising upon objections to the process as to any other. They are,-mere errors after the -defendant has appeared and pleaded upon the merits; and as such are waived when the party by his appeal has elected to take and duly demanded a new trial. This rule of course has no application to an appeal taken from a void judgment In that case the appeal will be dismissed or the judgment reversed. Gillingham v. Jenkins, 40 Hun, 594.

The judgment should be reversed, and the case remitted to the county court for a new trial upon the appeal thereto- ■ from the justice’s judgment. Costs of this appeal to the' plaintiff to abide the event.

Barker, P. J., Haight and Dwight, JJ., concur.  