#### Clarence E. Pitts, Appellant, *v.*Harry E. Francis, Respondent.

Third Department,

September 15, 1914.

Justice’s Court — practice —judgment on default of defendant —lack of authority of person appearing for plaintiff—non-residence of defendant — proof of service.

A justice of the peace with whom a summons and verified complaint with proof of service thereof have been filed, should, on the default of the defendant in appearing, enter judgment for the plaintiff without further proof, as provided in section 2891 of the Code of Civil Procedure.

As a justice of the peace is empowered to enter judgment without the appearance of an attorney for the plaintiff, a lack of authority on the part of the person who appeared for the plaintiff on the defendant’s default is Immaterial and does not invalidate the judgment.

A judgment so entered should stand, although the complaint shows that the defendant was not a resident of the county, for presumably he was served within the town in which the justice resided.

Appeal by the plaintiff, Clarence E. Pitts, from an order and judgment of the County Court of Franklin county, entered in the office of the clerk of said county on the 6th day of November, 1913, reversing a judgment of a Justice’s Court in plaintiff’s favor.

*Walter J. Mears [Joseph T. McCaffrey*of counsel], for the appellant.

*Main & O’Neil*[H. *W. Main*of counsel], for the respondent.

Smith, P. J.:

The defendant in this action was an itinerant captain in the Salvation Army. Plaintiff guaranteed several of the accounts of the defendant with the local grocers and he also loaned the defendant some money. In July, 1913, the plaintiff made and verified a complaint to be used in this action in Justice’s Court, but the summons was not issued until September 2, 1913. In the complaint the plaintiff alleges that he, the plaintiff, is a resident of Oswego, and that the defendant is a resident of Middletown. The summons and verified complaint were returned to the justice as having been duly served September *7884, 1913. At the time the summons was served the defendant was a resident of Malone. On the return date of the summons neither of the parties appeared in person, but the return states that Walter J. Mears appeared for the plaintiff. The defendant not appearing, at all, either in person or by attorney, a judgment by default against him was taken for thirty-five dollars and sixty cents, including costs.

An appeal was taken to the County Court of Franklin county, which court, without any opinion and without stating the grounds for its action, reversed the judgment of the justice of the peace. In the respondent’s points on the appeal to this court the defendant attacks the judgment rendered against him by the justice of the peace, *first,*because the authority of Mears, who appeared to represent the plaintiff, was not proven, as required by section 2890 of the Code; *second,*because the necessary allegations as to the residence of the defendant were not pleaded so as to give the justice of the peace jurisdiction.

The return of the justice shows that the summons, with the verified complaint attached, was returned as personally served on the defendant on September fourth. By section 2891 of the Code of Civil Procedure, upon the failure of the defendant to answer, “ the court shall, upon filing the summons and complaint, with due proof of service thereof, enter judgment for the plaintiff and against the defendant, for the amount demanded in such complaint, with costs, without further proof.” The justice had before him, as returned by the constable, the verified complaint with proof of service. It was his duty then to enter up the judgment to which the plaintiff was entitled upon the default of the defendant. With the complaint of the plaintiff verified and filed with the justice it would be giving technicality precedence over substance to hold that the judgment entered was unlawful. If the justice were required, or even authorized, as seems to me plain, to enter that judgment without an attorney an insufficient appearance of the attorney for the plaintiff would not invalidate the judgment.

I think the complaint sufficiently states the jurisdiction of the court. In case the defendant is a non-resident of the *789county he may he sued wherever found. (Code Civ. Proc. § 2869, subd. 3.) The complaint alleges the non-residence of the defendant. Presumably he was served within the town in which the justice resided, which would be proper service. I am unable to see, therefore, any reason why this judgment should not stand.

All concurred.

Judgment of the County Court reversed and that of the justice affirmed, with costs in the County Court and in this court.