Page images
[ocr errors]

or with a person having charge thereof,24 is good, made at any hour of day or night.23 Other methods of service are limited as to hours, being usually required between 6 A. M. and 9 P. M.

Service on Sunday is not good,26 but unless a statute expressly restricts service on holidays, it may be made on those days.27

9. Fractions of a day.]— The law does not now refuse to regard fractions of a day merely because they are fractions; and if the adversary's time is limited by a specified hour, service on him at a later hour of the same day is good ; 28 but the old maxim is still invoked to prevent negligence and injustice.29 Thus, under the rule that an inquest or default may be taken when the cause is reached, when no affidavit of merits has been served — if the party waits and serves the affidavit on the day when the default for the want of it may be regularly taken, and the default is taken on that day, in good faith, and without knowing of the service, the court will not inquire or take notice of the fact that the service was at an earlier hour in the day than the taking of the default.30

II. SERVICE ON PARTY, ATTORNEY, OR COUNSEL. 10. Papers to affect party who has not appeared.]-A party who has not appeared is not entitled to further notices in the ordinary prosecution of the action (at least within the original scope

24 Cooper v. Carr, 8 Johns. 360 (service of notice of motion on clerk in office at 10 at night). Followed in Miller v. Stocking, 22 Wend. 623.

26 A party having service to make, has the whole of the last day fixed for service, and affidavit that the paper was not served, made on that day, even after 9 at night, is irregular, and will not sustain a default thereon. Hoxie 1. Scott, Clarke, 457.

26 N. Y. Pen. Code, $ 268; Scott Shoe Mach. Co. v. Dancel, 63 App. Div. 172, 71 N. Y. Supp. 263. Except summons, complaint, and injunction order, if an order is obtained permitting service on that day (Code Civ. Pro., $ 6, as amended in 1900); and except habeas corpus (Code Civ. Pro., & 2015).

As to service on Sunday, in Ohio and California, see PUBLICATION, p. 358, note 97 of this volume; also Hastings v. Columbus, 42 Ohio St. 585.

27 Didsbury v. Van Tassell, 56 Hun, 423, 10 N. Y. Supp. 32; Matter of Bornemann, 6 App. Div. 524, 39 N. Y. Supp. 686; Flynn v. Union Surety & G. Co., 170 N. Y. 145.

28 Wardell v. Etler, 143 Mass. 19, 7 East. Rep. 858.

29 See Douglass v. Sieferd, 18 Misc. 188, 41 N. Y. Supp. 289 (law going into effect on the day of trial applies to such trial).

30 Brainard v. Hanford, 6 Hill, 368. Affidavit to prevent an inquest, left at plaintiff's office, no one being in at the time, and he took the inquest a few minutes afterwards, but without knowing that the affidavit had been served. Motion to set aside the inquest denied.

of the relief which the jurisdictional process and papers warned him would be sought), unless he is actually confined in jail for want of bail.32


11. - who has appeared in person.]— If a party to an action has appeared in person, papers may be served on him33 (1) personally at any hour; 34 (2) or by leaving the paper at his residence within the State between 6 a. M. and 9 P. M. with a person of suitable age and discretion, or (3) by mail under the requirements hereafter discussed.3

If the residence of a party appearing in person cannot, with reasonable diligence, be ascertained, or his residence is out of the State, and he has not designated on the preceding papers, an address within the State, service of a paper upon him may be made by serving it on the clerk.36 But mere lack

36 But mere lack of attorney is not sufficient to justify proceeding against a party by service on the clerk.37


who has appeared by attorney. ]- If a party to an action has appeared generally,38 by attorney, service must be made on him, not on the party.38 An oral arrangement for substitution does not dispense with service on the attorney so long as he remains such on the record. 40

A statute or rule, order or judgment, requiring service on the defendant," or on the “party,” is not construed as necessarily

31 See Weil v. Martin, 24 Hun, 645, 1 Civ. Pro. Rep. (McCarty) 133; compare Carr v. Sterling. 114 N. Y. 558; Farmers' Nat. Bank v. Williams, 9 N. Y. Civ. Pro, Rep. 212.

32 N. Y. Code Civ. Pro., & 799.
33 N. Y. Code Civ. Pro., 88 798, 799.
34 See paragraph 8, supra.
35 See paragraphs 34-42, post.
36 N. Y. Code Civ. Pro., $ 800; Grant v. Dean, 4 Monthly L. Bul. 13.

37 Clement r. Crossman, 8 Johns. 287. It is a recognized general principle that one ought not to lose a right acquired by judgment until he has had a reasonable opportunity to be heard. Thus, if the judgment-creditor has no attorney, a rule to join in error must be served on him. Motion to set aside judgment of reversal. Notice was posted in clerk's office. Held, insufficient, but motion denied on ground of laches.

38 As to what mode of appearance entitles to notice. See APPEARANCE.

39 N. Y. Code Civ. Pro., & 799; Wardell v. Eden, 2 Johns. Cas. 121. “ Whereever there is an attorney retained, the service must be on him;" service on the party held irregular. Bennett r. Weed, 38 Misc. 290, 77 N. Y. Sunn. 864 (service of notice of motion upon one client personally by his own attorney, who also appears for another, is a nullity).

40 Wood r. Holmes, 19 Wkly. Dig. 121.

implying personal service; but is taken in connection with the general principle that if a defendant has appeared by attorney, and the action is still pending, service on the latter is necessary and sufficient. 41

And the same has been held even of service on which to found proceedings for contempt, in some cases,42 but this applies only to a pending action or proceeding, and not where the attorney's authority has presumably terminated by entry of a final judgment or order.^3 (See paragraph 13, below.)

The language of the statute in question is to be considered, however, and if it appear from the context that personal service was contemplated, the court should not proceed on service on the attorney merely, especially to punish for contempt. 4

41 Rogers v. Ladd, 117 Mass. 334 (holding notice to attorney of record good under a statute authorizing summary judgment on notice to defendant).

Welton v. Garibardi, 6 Cal. 245 (holding service of notice of appeal on attorney good under statute as to Justice's Court requiring service on the party, and not, as in appeals, on the party or attorney).

Where an order required, if defendant refused to refund certain moneys within twenty days after service of a copy, a judgment should be set aside and vacated, but did not in terms require personal service: Held, service on his attorney was sufficient. Flynn v. Bailey, 50 Barb. 73.

Hence, where a defendant has appeared by attorney, an amended complaint, required by the statute to be served on “ the defendant,” is to be served on the attorney, and service on defendant personally is irregular, and will not sustain default for want of answer. Mercier v. Pearlstone, 7 Abb. Pr. 325; to same effect, Tripp v. De Bow, 3 How. Pr. 114.

Contra, Finch v. Lamberton, 62 Pa. St. 370 (statute requiring notice containing names of arbitrators to be served on the party, not complied with by service on attorney).

Nash v. Gilkeson, 5 Serg. & R. 352. (Notice of taking deposition, rejected when offered in evidence because notice served on attorney.) S. P., Gracy v. Bailee, 16 Serg. & R. 126; Fleming v. Beck, 48 Pa. St. 309; Cunningham 6. Jordan, 1 Pa. St. 442.

Otherwise where there was no requirement of statute or rule, and the attorney retained the paper without objection. Newlin v. Newlin, 8 Serg. & R. 41.

42 Pitt v. Davison, 37 N. Y. 235; Mahon v. Mahon, 50 Super. Ct. 92; Zim• merman z. Zimmerman, 26 Abb. N. C. 366, 14 N. Y. Supp. 444; Rochester Lamp Co. v. Brigham, 1 App. Div. 490, 37 N. Y. Supp. 403; Isaacs r. Calder, 42 App. Div. 152, 59 N. Y. Supp. 23; Hart v. Johnson, 43 Hun, 505; Koehler v. Farmers & Drovers' Bank, 14 N. Y. Civ. Pro. Rep. 71.

43 Keller v. Keller, 100 App. Div. 325, 91 N. Y. Supp. 528; Goldie v. Goldie, 77 App. Div. 12, 79 N. Y. Supp. 268, 12 Anno. Cas. 175.

44 See, for instance, Tebo r. Baker, 77 N. Y. 33 (order for examination before trial). Brown v. Georgi, 26 Misc. 128, 56 N. Y. Supp. 923 (an order striking out an answer upon failure to comply with the order for discovery, sustained although the original order was served only upon the defendant's attorney).

13. Attorney's power to proceed after judgment.]—If the client does not revoke the authority of his attorney of record, either expressly or by implication, when the attorney has recovered judgment, the attorney has implied power, without a new retainer, to proceed to enforce the judgment;45 and papers thereupon served, and demands made, by him, upon the adverse party or attorney, in the course of such proceedings in the cause, and for purpose of enforcement of the judgment, whether by way of issue of execution, or remedies against the person, 46 or the institution of supplementary proceedings,47 are within his general authority.

But the lapse of time — a year and a day at common law,48 for which two years from filing the judgment-roll is substituted by the New York statute 49 terminates his power to satisfy the judg

ment. 50

14. — to give consent affecting appeal or review.]—While it is not uncommon practice to obtain and rely upon a stipulation extending the time within which to serve a notice of appeal, the question is not authoritatively settled whether, in the absence of in

45 Barber v. Dewes, 101 App. Div. 432, 91 N. Y. Supp. 1059; Cruikshank 8. Goodwin, 66 Hun, 626, 20 N. Y. Supp. 757, 49 N. Y. St. Rep. 603. See also Commercial Bank v. Foltz, 13 App. Div. 603, 43 N. Y. Supp. 985, and cases collated,

46 Steward v. Biddlecum, 2 N. Y. 103 (demand previous to instituting proceeding under the non-imprisonment act).

47 Ward r. Roy, 69 N. Y. 96 (holding that the attorney's authority extends even to binding his client for the costs of a suit by a receiver appointed in such supplementary proceedings).

Supplementary proceedings have since been declared, by statute in New York, to be a new special proceeding, not a proceeding in the action, but this formal change does not terminate the implied power of the attorney to collect the debt through them.

Davis 0. Bowne, 118 N. Y. 55 (attorney may authorize sheriff to discharge defendant held under body execution, upon being paid the amount of the judgment).

But the death of the client does terminate the authority. Amoré v. La Mothe, 5 Abb. N. C. 146.

Whether the attorney can bring a new suit, compare Nichols v. Dennis, R. M. Charlt. (Geo.) 188 (holding that he can sue out scire facias to fix liability of bail); Dearborn v. Dearborn, 15 Mass. 316 (holding that it is his duty to do so —

- in this case the client resided at a distance); and, on the other hand, Walradt v. Maynard, 3 Barb. 584 (holding that he has not implied authority to sue on the bond given on certiorari, and cannot recover his fees of his client if he does so). 48 Lewis v. Woodruff, 15 How. Pr. 539.

49 N. Y. Code Civ. Pro., & 1260. And during this period he may so satisfy the judgment against the direction of his client. Woodford v. Kasbach, 6 Civ.

59. How far he has power to bind his client, and protect the sheriff, by special instructions modifying what would otherwise be the duty of the sheritř, see EXECUTION.

Pro. Rep. 321.

structions from a client, the attorney has implied power, after judginent, to extend the time of his adversary to appeal.51

But he has not the power to consent to vacate a regular judg. inent on the merits,62 or allow a new trial after such judgment, unless for a cause for which the court would vacate it; nor, after final judgment, to consent to the entry of orders amending the proceedings nunc pro tunc. 4 Otherwise of a purely formal judg. ment, or one unconscionably obtained.55

15. Power of client to proceed by new attorney.]-- Upon the recovery of judgment, however, the client may revoke his attor ney's authority and proceed, so far as he can without prejudice to the former attorney's lien, by another attorney, without causing substitution on the record.56 IIence, if after judgment, papers on behalf of a party to the judgment are served by another attorney, they are to be received and respected as binding the client. It is, however, the better practice for an attorney coming into the cause after judginent in this way, to serve formal notice of appearance and demand that all papers be served on him.

Such proceedings, however, are not to be relied on without regard to the question whether the former attorney may have a lien upon the judgment he recovered, which may, under some circumstances, entitle him to protection against proceedings without notice to him.

51 That the attorney has such power was held in Hoffenberth r. Muller, 1? Abb. Pr. (N. S.) 221. Contra, Bergholtz v. Ithaca St. Ry. Co. 27 Misc. 176, 58 N. Y. Supp. 390, 29 Civ. Pro. Rep. 294.

52 Quinn i. Lloyd, 30 Super (t. 538, 5 Abb. Pr. (N. S.) 281, 36 How. Pr. 378.

53 Ilolbert 1. Montgomery, 5 Dana (Ky.), 11. (Here, however, as the record recited the consent of the parties, and there had been long delay, the court declined to relieve.)

54 Walter v. De Graaf, 19 Abb. N. C. 406.
65 See Anon., 1 Wend. 108, and Read t. French, 28 N. Y. 285.

56 Thorp v. Fowler, 5 Cow. 446 (holding that execution may be issued by another attorney).

Davis 1'. Solomon, 25 Misc. 695, 56 N. Y. Supp. 80, 28 Civ. Pro, Rep. 420. (New attorney appearing for defendant upon his application to open a default judgment.)

S. P., Egan t. Rooney, 38 How. Pr. 121; Cruikshank r. Goodwin, 20 N. Y. Supp. 757, 66 Hun, 626.

Ward 1. Sands, 10 Abb. N. C. 60 (to same effect, although the judgment was void for want of jurisdiction).

Hinkley v. St. Anthony Falls, etc., Co. 9 Minn. 55 (rule recognized by statute).

Whether scire facias to revive a judgment in a new action within the rule, see Gonnigal v. Smith, 6 Johns. 106, aflirmative; and Day v. Welles, 31 Conn. 344, negative.

« PreviousContinue »