#### Richmond Sales Company, Appellant, *v.*William H. Morris, the Name “William” Being Fictitious, His True Christian Name Being Unknown to Plaintiff, Respondent.

Second Department,

May 23, 1913.

Practice — Justice’s Court — error in date of summons — effect of failure to amend.

Justices’ Courts not being courts of record acquire jurisdiction only through strict compliance with the statute. The provisions of section 24 of the Code of Civil Procedure as to disregarding errors in process apply only to courts of record.

Where a summons issued by a justice of the peace was antedated through clerical error, the plaintiff may apply for an amendment correcting the date; but having failed to do so, the justice should dismiss the action on motion of the defendant.

Appeal by the plaintiff, the Richmond Sales Company, from a judgment of the County Court of Nassau county in favor of the defendant, entered in the office of the clerk of said county on the 4th day of January, 1913, affirming a judgment of a justice of the peace of the town of Hempstead dismissing the complaint herein.

*Lincoln B. Haskin,*for the appellant.

*Charles I. Wood,*for the respondent.

Putnam, J.:

This appeal is over a point of practice in a Justice’s Court. The present summons was signed and issued on October 2, 1912, but through an error in the typewritten forms presented by plaintiff’s attorney was not so dated. Defendant was to ■ appear on October fourteenth, and the summons concluded: *“*Given under my hand this 2nd day of *Sept.,*1912,” followed by signature of the justice of the peace.

Upon the return day defendant moved to dismiss upon the ground that the summons did not comply with section 2877 of the Code of Civil Procedure. After offers of proof the justice by consent made an entry in his minutes from his own recol*375lection that on October second he had handed this summons and complaint to the person deputed for service. Plaintiff, however, did not move to amend the date in the summons, suffering a dismissal instead, since he claimed that the justice should disregard the date altogether. This dismissal has been affirmed by the County Court.

Although the consideration of this point may seem minute and over-technical, still Justices’ Courts, not being courts of record, acquire jurisdiction only through strict compliance with the statutes. The general provision for disregarding errors in process (Code Civ. Proc. § 24) applies only to courts of record and not to the inferior courts. *(Talcott*v. *Rozenberg,*3 Daly, 203.)

By common law fifteen days had to ran between the *teste*and the return in summons and attachments (Co. Lit. 134b), and for the failure to give this interval the writ might be quashed as an error and not a mere irregularity. (6 Comyn Dig. 94, art. “Process.”)

The Rew York Revised Statutes required that the time to appear in the Justice’s Court summons should be “not less than six, nor more than twelve days, from the *date*of the same.” (2 R. S. 228, § 14.)

The amendment in 1860, giving added jurisdiction to justices of the peace, also provided that the twelve days for the long summons should be copaputed from the *date*of the summons. (Laws of 1860, chap. 131, § 4.)

The present Code provision is that the return shall be not less than six nor more than twelve days after the day when it was issued. (Code Civ. Proc. § 2877.)

The date, however, seems essential, as any mandate issued from a justice of the peace must be completed when delivered for execution. It is not, then, to have any blank -left to be filled in, “ either in the *date*thereof or otherwise.” (Code Civ. Proc. § 3136.)

It is a general requirement that the date in a writ shall truly state the day of its issue. “The antedating of a writ may work great damage, as in the case of an attempt to avoid the Statute of Limitations.” *(Morris Canal & Banking Co.*v. *Mitchell,*31 N. J. L. 99, 102.)

*376In the absence of evidence the date in the writ is the beginning of the action, so as to save the Statute of Limitations, and the date in the *teste*of the writ is *prima facie*evidence that it issued at that date. *(Chapman*v. *Goodrich,*55 Vt. 354.) The older law as to the dates of writs appears in *Johnson*v. *Smith*(2 Burr. 950, 966), where Lord Mansfield said: “I allow the maxim laid down in Plowden (Plowd. 491b, 492a), and many other books, ‘ That no man shall be allowed to plead or prove that such a writ was sued out on a different day from that on which it hears date. ’ Plowden gives the reason, *‘*because contradicting the *teste*tends to discredit some judicial or other officer of record.’ But this only goes to the mode of redress: the false date does not finally conclude the party. His redress is in a summary way, by application to the Court out of which the writ issues. And therefore in the Court of Exchequer, in the case of the *King*v. *Mann*(2 Strange, 749), upon an extent, the Court inclined to disallow the plea; and set aside the writ upon motion, because it was ante-dated.”

As it was no part of the official duty of the justice to deliver process for service, he could not act upon his own personal knowledge of the delivery of the summons to the person deputed to serve it except upon consent. *(Cornell*v. *Moulton,*3 Den. 12.)

The effect of his minute entered on the return day, if equivalent to parol evidence to show the date (32 Cyc. 439), still left the summons with a false *teste,*to which formal objection was made by motion. It was, therefore, the plaintiff’s duty to apply for an amendment to correct the date of the summons, which the justice had power to grant. *(Bradbury*v. *Van Nostrand,*45 Barb. 194.)

While, without objection being taken, the justice might disregard clerical errors *(Arnold*v. *Maltby,*4 Den. 498), it is not so after a motion to quash, unless the summons still shows enough to indicate the proper date. Correct procedure requires that such errors and defects, when seasonably objected to, shall be amended to conform to the fact.

The verity of legal process requires that when the proof shows a false antedating 'of the summons it should not be left to stand and form what may he a misleading record, but should *377be amended so as to state the truth. As no amendment was asked after the motion to quash and dismiss, the justice rightly declined to proceed on the record as it stood.

The judgment should be affirmed, with costs.

Jenks, P. J., Thomas, Carr and Stapleton,, JJ., concurred.

Judgment of the County Court of Nassau county affirmed, with costs.