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the plaintiff], within twenty days after the service of this sum-
[Signature 14 of] Plaintiff's attorney.15
with street and street number, if any,
or other designation, if in a city.] [Indorsement, and Notices appended; see following Forms.]
FORM No. 366. Notice served with summons when complaint is not served, in action for
money demand on contract.18 To the defendant [s] above-named [or, named in the annexed –
or, within — summons]: Take notice, that upon your failure to appear and answer the
11 Where the summons erroneously specifies the time within which an answer must be served, the error is not necessarily jurisdictional, but may be a mere irregularity, and amendable. Hammond v. Tillotson, 18 Barb. 332; Gibbon v. Freel, 65 How. Pr. 273 (holding amendable a sum mons issued out of the New York Marine (now City) Court, and served by publication, that allowed six days to answer instead of the ten required by statute).
12 A notice to answer, without men tioning demurring, held sufficient to sustain a default even in the absence of a statute making the above form sufficient. Lyman 1. Bechtel, 55 Iowa, 437, 7 Northwest. Rep. 673 (so hold ing under rule providing for default on failure to answer or demur).
13 The date is not usually material. Smith v. Walker, 6 S. C. 169 (holding not void an attachment dated earlier than the summons).
14 A printed subscription is sufficient. Barnard r. Heydrick, 49 Barb. 62, 2 Abb. Pr. (N. S.) 47; Mutual Life Ins. Co. t". Ross, 10 Abb. Pr. 260, n.; Mavor, etc., of New York v. Eisler, 2 Civ. Pro. Rep. (Browne) 125, 10 Daly, 396.
15 But one attorney, or firm of attorneys, can act as the record attorney of plaintiffs. Jones t. Conlon, 43 Misc. 172, 96 N. Y. Supp. 255.
16 Required by N. Y. Code Cir. Pro., $ 55, if he does not appear by attorney. 1 7 Required by N, Y. Code Civ. Pro, & 417.
18 The object is to enable plaintiff to take judgment by default on application to the clerk instead of to the court. N. Y. Code Civ. Pro., & 419; Sharp v. Clapp, 15 App. Div. 445, 44 N. Y. Supp. 451.
The plaintiff is not estopped by this notice from subsequently serving a complaint sounding in tort, Sharp v. Clapp, supra.
The notice may be amended, but not ex parte. Cassidy v. Bovland. 3 N. Y. Supp. 258, 15 Civ, Pro. Rep. 220.
As to what is a money demand on contract, see Richmond Hill S. S. (o. v. Seager, 31 App. Div. 288, 52 N. Y. Supp. 985, 6 Anno. Cas, 65, 27 Cir. Pro. Rep. 395; Augner c. Mayor. 14 App. Div. 461, 43 N. Y. Supp. 803; Peyser v, McCormack, 7 Hun, 300.
summons in this action, judgment will be taken against you for the sum of dollars with interest from the day of , 19, [on
dollars thereof, and interest from the day of , 19 , on
dollars thereof'], with costs. Date.]
[Signature and address as in last Form.]
FORM No. 367. Indorsement on copy summons for penalty served without complaint.20
[Indorse on copy served] According to the provisions of section 21, of chap. , of an act of the legislature of the State of New York, passed , 19 , and entitled [title of act) and the acts amendatory thereof, viz., [stating them in like manner.722
FORM No. 368.
To Y. Z., one of the defendants above-named. Please take notice, that the object of this action, in which a 19 The amount of interest need not oficer who was plaintiff relied for his be stated. Bullard v. Sherwood, 85 right to sue, was held not to vitiate). N. Y. 253.
Failure to indorse the summons is 20 The provision of N. Y. Code Civ. an irregularity for which the service Pro., $ 1897, requiring an indorse. may be set aside. Bissell v. N. Y. C. ment, applies to an action brought by & H. R, R. R. Co., 67 Barb. 385. But the people. People v. O'Neil, 54 Hun, the fact that the object of the action 610, 8 N. Y. Supp. 123. Also, an is to enforce a penalty must be propaction on a municipal ordinance. erly established on the motion. Delis. Mayor, etc., of New York v. Eisler, 2 ser v. N. Y., N. H. & H. R. R. Co., 59 liv. Pro. Rep. (Browne) 125, 10 N. Y. Super. 233, 14 N. Y. Supp. 382. Daly, 396. Does not apply to actions 21 Mentioning two sections under for damages, where the penalty is both of which plaintiff might have only incidental to the recovery. Layton sued in the same action, held suffir. McConnell, 61 App. Div. 447, 70 cient, though the complaint filed set X. Y. Supp. 679 (malicious trespass). forth a cause of action for a violation
The omission to make the indorse of only one. Ripley v. McCann, 34 ment is cured by defendant's answer. Hun, 112. ing without objection. Vernon v. 22 Adding a general reference to Palmer, 48 N. Y. Super. Ct. 231. “the acts amendatory thereof,” was
A general appearance by the defend held not to vitiate where the amendint is not a waiver of the objection, ments did not affect the section men
nd when the comn'' served and tioned. Ripley v. McCann, 34 Hun, sie nature of the action first appears, 112. a motion will lie to set aside the A copy of an alias summons in a service. Farmers' etc., Bank v. Municipal Court need not be indorsed Stringer, 75 App. Div. 127, 77 N. Y. where the copy of the original served Supp. 410.
at same time upon the defendant bore The object is to give the informa a proper indorsement. State Board of tion, and if this is duly given, literal Pharmacy v. Jacob, 46 Misc. 607, 92 indorsement is unnecessary. Prussia N. Y. Supp. 836. P. Guenther. 16 Abb. N. C. 230 23 Under N. Y. Code Civ. Pro., 8 423. where omission to mention an The purpose of tlus is to save copy. ainendatory statute, on which the ing voluminous papers, and to charge
summons is herewith served upon you, is [here state general object, for instance, thus:]
[In partition to obtain partition of the premises described below, to be made among the owners thereof by commissioners to be appointed for the purpose, or to obtain a sale thereof and a division of the proceeds, if a partition cannot be made without prejudice to the interests of the owners.
[Or, in foreclosure, thus:] to foreclose a mortgage upon the premises described below, executed by W. X., and Y. X., his wife, to M. N., dated the day of ,19 , for dollars, with interest from
, 19, which mortgage was recorded in the office of
, on the day of 19, in Book No. of Mortgages, page 24
[Or, in action to establish lien, etc., thus:] to enforce the sale of certain lands, described in a deed dated , 19 , made by [name] to [name] and others, and duly recorded in county [stating place], and out of the proceeds of said sale to refund to said . certain moneys paid by said in behalf of said
25 The premises in question are described in the complaint as follows [copy description].
No personal claim is made against you. [Date.]
[Signature and office address of],
Attorney for plaintiff.
the defendant served with costs if he unreasonably defends.
Whetts (Cin. Super. Ct.), 1 Handy, 39.
24 It is not sufficient to state that the action is brought “ for the recovery of money and for the foreclosure of a mortgage." There should be a pertinent description of the mortgaged premises such as that a tenant in possession may know that the property is sought to be charged. Lawler 7.
25 This form was sustained in Gary v. May, 16 Ohio, 66, 79.
A notice that the object was " to set aside” a certain deed made by W. to the defendant, without any fur. ther indication of the nature of the case, was held insufficient in Bobb c. Woodward, 42 Mo. 482
ARTICLE II. PERSONAL SERVICE AND PROOF THEREOF. [The general rule as to service of the ordinary papers in an action, after action begun, have already been stated in the article on SERVICE, p. 378 of this volume. It remains to state here those rules which are peculiar to the summons or other process by which the court acquires jurisdiction. For obvious reasons special safeguards are prescribed for securing actual notice of the commencement of an action, which are not requisite for subsequent steps.
For obvious reasons under “personal service " is included service on a corporation by delivery to its agent or officer, and service on a sheriff by delivery at his office, although in one aspect they might be regarded as rather in the nature of substituted service.]
qualification of party.
make. 8. — contents. 9. — service of indorsement. 10. — alleging age of server. 11. Official certificate or return. 12. Defects in proof not jurisdictional, FORMS. (369) Affidavit of personal service. (370) Another Form; service on
many defendants. (371) The same; on infant under
fourteen and next friend. (372) The same; on judicially de
clared incompetent, by de
livering to committee.
summons upon another pei.
(374) Affidavit of service on person
designated by defendant. (375) Affidavit of personal service
in matrimonial action. (376) Affidavit of service on a con
vict in prison. (377) --on sheriff by serving
under-sheriff or leaving at
office. (378) --on a domestic corpora
tion. (379) -- on foreign corporation
by delivering to director,
cashier or managing editor. (380) --on voluntary associa
tion. (381) Certificate by sheriff of per
sonal service on defendant. (382) Admission of personal service. (383) muavit to signature of ad
mission of service. (384) Admission of service and con
sent to immediate judg
ment. (385) Affidavit of failure to appear,
answer or demurrer. (386) Judgment entered on admis
sion of service and waiver of answer.
1. Jurisdiction.] — It is the service of the summons or process intended to bring defendant into court which gives jurisdiction,26 not the service of the complaint or other pleading. 27
26 Barnes v. Harris, 4 N. Y. 374; Akin v. Albany Northern R. R. Co., 14 How. 337. See also Ballard v. Bancroft, 31 Geo. 503 (reversing judgment for failure to serve the process with the pleading).
27 Dew v. Cunningham, 28 Ala. 466 (affirming judgment on default, notwithstanding failure to serve the pleading with the process).
Serving or filing the pleading is not a jurisdictional act, unless made so by the statute, as is the case for instance in some jurisdictions where the process cannot issue until the pleading has been filed.28
For the purpose of avoiding the bar of the Statute of Limitations, an action is deemed commenced, under the New York statute, even before service of summons from the time when the summons is delivered with intent that it be actually served by the sheriff or other officer.29 And a provisional remedy may be granted before service of summons, and from the time of granting it in a case provided for by statute, the court is deemed to have acquired jurisdiction.30
In each of these cases, however, the acquirement of jurisdiction is conditional and limited to the specified purpose, and liable to be defeated by failure seasonably to proceed in the action.
2. Who may serve process. — Disqualification of party.] —A party to the action is not competent to serve the summons or other process by which it is commenced. 31
If the sheriff or constable is a party to the action,32 he is disqualified to serve the process,33 and service may be made by the coroner. 34
28 U. S. t. Eddy, 28 Fed. Rep. 226 (applying the Ohio statute, and holding the filing of the pleading before the service of the process indispensable). Otherwise where not required by statute. See Keith v. Quinney, 1 Oreg. 364.
29 N. Y. Code Civ. Pro., $ 399. 30 N. Y. Code Civ, Pro., & 416.
31 N. Y. Code Civ. Pro., § 425; Filkins . O'Sullivan, 79 Ill. 524 (service ly a person not an officer, though deputized by the sheriff, and having the same name as one of the plaintiffs, held invalid as presumably made by one of the plaintiffs).
Service by a party is a mere irregularity, however. Hunter 0. Lester, 10 Abb. Pr. 345; Losey v. Stanley, 83 Hun, 420, 31 N. Y. Supp. 950, rev'd on another point, 147 N. Y. 560.
For the rule that a party cannot serve, see also p. 379 of this volume.
Under a statute authorizing service of summons by any person not a party appointed by the officer to whom the summons is directed, the omission to obtain such a direction is fatal. A direction from a justice of the peace is a nullity. Republican Valley R. R. Co. 1. Sayer, 13 Nebr. 280.
32 And at common law, if he is interested in the action. Windham t. Hampton, 1 Root (Conn.), 175 (service by inhabitant of the town which was plaintiff).
Evarts t. Georgia, 18 Vt. 15 (sheriff's ownership of property within the town sued disqualifies him to serve the suit on the town).
33 Decker v. Ekelman, 17 Misc. 665, 41 N. Y. Supp. 412; Smith v. Burliss, 23 Misc. 544, 52 N. Y. Supp. 841, 28 Civ, Pro. Rep. 89.
34 N. Y. Code Civ. Pro., $ 172; Knott v. Jarboe, 1 Metc. (Ky.) 504 (sheriff, plaintiff, cannot serve his own process; and execution of judgment founded