Hirsch v. de Puy

• Decision Date: 17 June 1933
• Docket Number: No. 477.,477.
• Citation: 166 A. 720
• Parties: HIRSCH et al. v. DE PUY.
• Court: New Jersey Supreme Court

166 A. 720

HIRSCH et al.

v. DE PUY.

No. 477.

Supreme Court of New Jersey.

June 17, 1933.

Action by Solomon Hirsch and another, trading as the Morristown Lighting Supply Company, against Lyle M. De Puy. Judgment by default. On motion to quash the summons, etc.

Motion dismissed.

Argued January term, 1933, before TRENCHARD, CASE, and BROGAN, JJ.

Irving Youngelson, of Dover, for plaintiffs.

PER CURIAM.

The matter is before us on motion attempted to be made on behalf of the defendant to set aside the summons and the service thereof, and incidentally to set aside the judgment entered by default in the cause as well as the execution or executions and any steps taken thereunder. The summons in the cause was served, with complaint, upon the defendant May 9, 1931, and judgment by default was entered on June 4, 1931, for $348.56 damages and costs. On June 5, 1931, the original execution was issued and returned unsatisfied, and on December 28, 1932, an alias execution was issued and a levy made thereunder. Thereafter, on January 7, 1933, the defendant obtained a rule to show cause why the judgment should not be opened. That rule was heard by Mr. Justice Parker and was dismissed by him on the ground of laches in the making of the application. The record plalced in our hands is singularly crude and informal, but it discloses that the summons was not dated, that it carried no seal, and that, although the name and title of the clerk were typed in the space usually occupied by the signature, there was no actual signature. The plaintiff resists upon the ground, amongst others, of laches.

We are not prepared to hold that the absence of a date from a summons is of itself fatal. Section 47 of the Practice Act, 3 Comp. St. 1910, p. 4065, provides that "every process shall bear date on the day on which the same shall be issued, * * *" but that provision seems to be directory. Mitchell v. Morris Canal & Banking Co., 31 N. J. Law, 99. 103. It remains true, however, that the omission is an irregularity. Nor do we consider that the absence of a seal is fatal, though this, too, is an obvious irregularity and a departure from immemorial usage. It has been held that the signature of the clerk to a writ may be appended by the attorney, Seaman v. Perth Amboy, 98 N. J. Law, 174, 119 A. 278, but of course that is not to say that a writ of summons should not be signed either by or in the name of the clerk. The omission is a further irregularity. It seems that there must be a...