Hannaman v. Muckle 15 N.Y.S. 961

Griffith, J.

Upon the return of the summons before the justice the defendant appeared specially, and moved to dismiss the action upon several grounds, one of which was, “that the summons in this action was not issued until to-day, or, if issued, was issued in blank, without the date of issue or the date thereof being written therein.” In support of the objection the defendant called Charles T. Faulkner, and the question was asked him: “Did you, before December 20, 1890, as managing clerk for Warren, Patterson & Garnbell, receive paper purporting to be a summons and copy thereof from Hiram File, justice of the peace of the town of Pittstown, signed in blank by said justice, or did Warren, Patterson & Garnbell receive such papers within • the knowledge of the witness?” This was objected to by the plaintiff on the grounds that it is irrelevant and entirely immaterial. In addition thereto defendant asked the court to state in his minutes whether or not the court signed and delivered the summons to Warren, Patterson & Garnbell, attorneys for the plaintiff, or to any constable for service on the defendant, or if the court sent the summons signed in blank for service on the defendant. This the justice refused to state. Section 3135 of the Code of Civil Procedure provides that “a mandate issued by a justice of the peace must be signed by him,” and “must be entirely filled up at the time when it is delivered to an officer to be executed, so as to have no blank, either in the date thereof or otherwise. A mandate issued and delivered to an officer contrary to this section is void.” It would seem that the question put to Faulkner was competent, relevant, and material in support of the defendant’s motion, and is made the more relevant and material by reason of the justice’s refusal to state whether he had issued the mandate in blank. It was a proper inquiry, and properly made, and the justice erred in sustaining the objection. By the amended return the justice says that the summons was issued by him, signed, but not filled up, and delivered to the plaintiff’s attorneys. This, in my opinion, was contrary to the provisions of the statute, and the summons was void. Subsequently issue was joined, and a trial had before a jury, which resulted in a disagreement, and a new venire was issued and returned on the 12th day of January, 1891, on which day parties appeared, venire returned, and jurors drawn and sworn. The plaintiff then moved for an adjournment on the'ground that his witnesses were not present, and he did not have time to subpoena them. To this adjournment the defendant objected upon several grounds. The court overruled the objections, and, in the language of the return, “court consented to hold case open till January 15th, at luj o’clock A. m. ; on account of court having engagement on the 13th and 14th, would be obliged to hold case over till 15th.” Section 2959 of the Code of Civil Procedure provides, at the time of the return of the summons, or the joinder of issue without process, but at no other time, the justice may, in his discretion, and upon his own motion, adjourn the trial of an action not more than eight days. Section 2960 provides that, at the time of the return of the summons or the joinder of issue without process, the justice must, upon application of the plaintiff, adjourn the trial of the action not more than eight days, to a time fixed by the justice; but such an adjournment shall not be granted unless the plaintiff or' his attorney, if required by the defendant, make oath that the plaintiff cannot-, for want of some material testimony or witness specified by him, safely proceed to trial. The adjournment from the 12th to the 15th of January, in the face of the defendant’s objections, was not in accord with the above provisions of the Code, and was irregular. The objections were made in due time, and well taken, and the adjournment was *963erroneous. The objections were not waived by the subsequent appearance of the defendant. When the question of regularity is raised at the proper time, and improperly overruled, the party is never concluded by pleading to the action. He does what he can, and at the earliest opportunity, to arrest the irregular proceeding; but, being defeated in this by the erroneous decision of the justice, the party cannot be deemed to have waived anything by subsequently pleading, and making the best defense in his power. Dewey v. Greene, 4 Denio, 93; Avery v. Slack, 17 Wend. 86. There are numerous objections taken by the defendant during the trial, which were overruled, to the great prejudice of the defendant. From the return it seems that the trial j ustice labored under the impression that he had one duty to perform, and that was to assist to any degree in securing a judgment against the defendant. That there was a violation of law by the defendant I have no doubt, but his right to a fair and impartial trial was denied him, and for the errors above mentioned the judgment should be reversed. Judgment reversed, with costs to the appellant.