
    HUNTER a. LESTER.
    
      Supreme Court, Seventh District;
    
    
      Special Term, January, 1860.
    Affidavit of Merits.—Summons.—Service and Proof of.
    Proof of service deemed to be made out, on conflict of affidavits.
    An affidavit of merits, alleging that the note- in suit has been paid, without stating when, where, or how, is insufficient as a ground of motion to open a judgment.
    Service of a summons by a party is a mere irregularity, which cannot be taken advantage of after judgment.
    
    
      Motion to vacate a judgment, and execution issued thereon, for irregularity in the judgment.
    
      Mr. Pingree, for the motion.
    
      J. R. French, opposed.
    The facts are stated in the opinion.
    
      
       That a printed subscription of a summons is sufficient, was recently held in the case of The Mutual Life Insubance Company a. Boss (Supreme Court, Seventh District, Special Term, March, 1860). This was a foreclosure action. It came up on a motion made by a defendant to set aside the summons and notice served upon him, on grounds which fully appear in the argument of the plaintiffs’ counsel.
      
        G. G. Munger, for the motion.
      
        McCurdy &; Betts and George E. Mumford, opposed.—This application is in behalf of Hubert McMaster, a judgment-creditor in a foreclosure suit. The copies of the summons to be served were sent to the sheriff of Livingston county to serve, under the Code (§ 134, suhd. 4, ed. 1859). The words are: “The summons shall be served by delivering a copy thereof as follows.” Then come subdivisions 1, 2, and 3, referring tti particular cases; lastly, subd. 4 : “ In all other cases, to the defendant, personally.” The summons in this case appears to have been regularly served by delivering a copy. There has been a decision at special term, in New York, by Judge Ingraham, that the summons filed with the papers must be signed in writing, with the name or names of the plaintiff or his attorney. In that case the summons had been filed, and the plaintiff had liberty to file another copy, nunc pro tunc. (Farmers’ Loan and Trust Company a. Dickson, 9 Abbott's Fr. R., 61.) That case applied to the original summons filed with the proceedings, and therefore is not applicable to this case. (§ 134.) If it were, we would respectfully ask that it might be reviewed, particularly as we understand that certain special circumstances alone prevented an appeal. But—I. The decision is not applicable to this case ; this being alleged to be a service of a copy of the summons, personally, on defendant. Even if it he necessary to sign with a pen, in writer’s ink, the original summons, it surely is not required in a copy.
      II. . The motion is, in part, founded on the service of the summons by delivering a copy being a nullity. This defeats itself. If a nullity, the defendant may so regard it. This court will not interfere to declare a null act null.
      III. If the motion be made on the ground of irregularity, it is premature. The copy of the summons served is undoubtedly in literal compliance with the statute. Whether the summons itself is so or not, cannot be told until it is brought before the court, and some action of the court sought upon it, or some proceeding taken.
      IV. If this application were made on the ground of the original summons being subscribed with printer’s ink in printer’s types, instead of writer’s ink, and in the identical hand-writing of the plaintiffs’’attorney ; it is submitted that the court would not grant it, for the following reasons : 1st. The objection to the summons is made on etymological grounds; namely, the words '' the summons shall be subscribed by the plaintiff or his attorneys,” means that it must be writ-
      , ten under. It cannot be sustained on those grounds; and if not on those, it cannot be on any other. The whole analogy of language will show that it means no such thing. The word “ scribe” in any combination, although derived from scriho, to write, does not necessarily mean writing with a pen or other instrument, with ink or otherwise. Ascription means attributing. We ascribe Power to the People ; Majesty to Kings ; Wisdom to Judges, &e. Conscription is a denunciation of enemies, or a levying of soldiers. Description means giving an account, a relation by words, pictures, symbols, or even sounds; and is by no means confined to writing. Inscription infers affixing pictures, figures, or words on other objects ; and inscriptions on monuments, the most common use of the term, refers to infixing by means of tools. Inscriptions on coins mean the legends, and not the writing. A prescription with a lawyer, is a right acquired by a lapse of time; with a physician, a direction, verbal or otherwise, to an apothecary. A re-script is an edict. It is the enactment and promulgation that makes a rescript; whether written, printed, or proclaimed. It is the thing, and not the name of it, that is essential. So a subscription is the fact of having one’s name with authority written, printed, or placed upon or after some paper, subject, or matter. An assent to a cashier’s letter, asking if a person will authorize a certain number of stock shares to be taken for him, is a subscription for that stock. A compliance with a request to give a certain amount in aid of a church or a charity, a proceeding by no means uncommon, is a subscription to that amount. It is idle to enlarge on this subject. In not one instance is writing indispensable. If the domain of philology, intricate to all except experts, be entered, the courts will soon find themselves in wandering mazes lost. The statute is complied with by a printed subscription of the name.
      V. The contemporaneous exposition and practice of the profession has been different. Under the old practice, and since the Code, the usage has been very extensive of using printed blanks with the printed names of the attorneys, and has always been considered in compliance with the term requiring subsa-iption. By rule 10 of the Supreme Court it is provided that on process or papers to be served, the attorney, besides subscribing or indorsing his name, shall add thereto his place of business. The counsel in this case has, at this very moment, a notice before him subscribed in printing, “ Greene 0. Bronson, counsel to the Corporation, No. 237 Broadway,” served subsequently to Judge Ingraham’s decision. No doubt this learned jurist thought that he was complying with the rule. Other papers, similarly subscribed, are constantly received.
      VI. The subscription in print is a strict compliance with section 128 of the Code. If it were otherwise, the court would, where the substantial end is gained of giving due notice, disregard a trivial error. It is beneath the dignity of the court to observe trifles. Cicero ascribes to the legal critics of etymological niceties the term of “ anceps syllabarum,” a term by no means respectful. Our common law, with a sarcasm unusual in its grave axioms, says with pointed force, “gui heard in litera, heard in cortice." Even, therefore, if the irregularity arose under section 128, that section having been really and substantial!)' complied with, the court will not interpolate the words “in writing with a pen” after the word “subscribed,” in order to give a meaning to the sentence, which is not fair and is unnecessary. The irregularity complained of, however, having reference to section 134, subdivision 4, which directs the service to be made by delivering a copy, there is no foundation for the application. There is no pretence nor allegation that this was not a copy of a summons.
      The three last points apply likewise to the subscription of the notice accompanying the summons.
      E. D. Smith, J.—After consideration, denied the motion with costs, upon the ground that a printed subscription is a substantial compliance with the statute, and the objection was technical, and if there were a defect it was immaterial.
    
   Knox, J.

—On the first day of February, 1850, John P. Hunter, one of the plaintiffs, served upon David D. Lester, the defendant, at the town of Sterling, in Cayuga county, a copy of the summons and complaint in the usual manner. This affidavit of service was made April 27,1857. There is, on the back of the complaint, an affidavit of service made on the 5th day of February, 1850. This last affidavit is defective, in not showing where or how the service was made. On the said 27th of April, 1857, a judgment was entered in Cayuga county by default, against defendant, for $271.68.

The above facts appear by the judgment-roll. On or about the 28th of September, 1859, an execution was issued on the judgment.

This motion is to set aside the judgment and execution on two grounds. First, that there never was any service in fact of the summons or complaint on the defendant; and, second, that if there ever was a service, it was made by the plaintiff himself, and that by such a service no jurisdiction was acquired.

The defendant swears that the summons never was served, but that, on the first of February, 1850, when the affidavit annexed to the judgment-roll shows it was served at Sterling, Cayuga county, he, the defendant, was at Argyle, in the county of Washington; and the affidavits by John Lester and George W. Lester say, “ they are very positive they saw Lester in Argyle, on the first of February, 1850.”.

On the other hand, there is John P. Hunter’s affidavit, that he did serve the summons, on the first day of February, 1850, on defendant at Sterling; the affidavit of Robert P. Hunter, that he saw him that day in Sterling, as he and his brother went there for the purpose of serving the summons. The affidavit of Robert Hume, who swears that he knows, from recollection and papers, that defendant was in Sterling on the first day of February, 1850; the affidavit of Hoxie, Cooper, and George T. Hunter, to the effect that the defendant was in Sterling on the first day of February, 1850.

I think there is no ground to doubt that the defendant is mistaken, and has forgotten that the summons was served upon him at the time and place' stated. It is nearly ten years since the service was made, and he may well have forgotten the fact. Hot so with the plaintiff, who made an affidavit of such service on the 4th of February, 1850, four days after.

Had the defendant made an affidavit of merits, or, when he swears generally “ that the note has been paid,” had he stated how, or where, or when paid, perhaps it would have presented a case where the court would feel justified in referring it to a referee to take proof, &c., as to whether the summons was served. But the defendant merely swears that “ the promissory note upon which this action is founded has been paid, according to defendant’s best knowledge and belief,” and there are some facts stated in the affidavit which lead me to believe that the defendant long: before the judgment was entered up, did not claim that the note was paid, but only that it was “ outlawed.”

As to the second ground of the motion, section 133 of the Code provides that “ the summons may be served by the sheriff of the county where the defendant may be found, or any other person not a party to the action.” I think the service of a summons by the party is a mere irregularity, which may be corrected by motion before judgment, but not afterwards. This was so held in Myers a. Overton (2 Abbotts' Pr. R., 344), by Justice Ingraham. “ The irregularity arises, not from the want of service, but from the mode of making it,” is his language.

The defendant, if he desired to avail himself of the irregularity, should have made his motion at the first opportunity.

Motion denied, with $7 costs of opposing.  