#### Thomas Kingsford, Respondent, *v.*George A. Butler, Appellant.

*Judgment by default before a justice of the peace —an attachment improperly issued treated as if no attachment had been issued*— an *unauthorized entry of judgment is not a technical eiror.*

It is the duty of a justice of the peace, upon the return of a summons that has not been personally served, to enter judgment by default, only when the record shows an attachment lawfully issued and regularly executed.

Where an attachment has been improperly issued by a jxistice of the peace, the justice upon the return of the summons should treat the case as if no attachment had ever been issued, and in such a case where the summons has not been personally served, an entry of judgment by default against the defendant is unauthorized.

The entry of such a judgment by default is not a merely technical error, and section 3063 of the Code of Civil Procedure does not apply to such a case.

Appeal by tbe defendant, George A. Butler, from a judgment of tbe County Court of Oswego county in favor of the plaintiff, entered in tbe office of tbe clerk of tbe county of Oswego on tbe *59929tb day of December, 1892, affirming the judgment of a justice of the peace of the city of Oswego.

*D. P.*Lester, for the appellant.

*L. W.*Baker, for the respondent.

Parker, J.:

The facts disclosed by the appeal book in this action are substantially as follows:

A justice of the peace issued a summons in favor of this plaintiff against the defendant upon the 13th day of August, 1892. At the same time he issued a warrant of attachment against the defendant’s property. The attachment was levied by the constable on certain personal property of the defendant, and a certified copy of it, and of an inventory of the property so levied upon, and of the summons, were each left by the constable at the defendant’s last place of residence with a person of suitable age and discretion. No personal service of the summons was ever made upon the defendant, nor any service other than as above stated. The affidavit upon which the warrant of attachment was issued, was wholly insufficient. to give the justice jurisdiction. The case of *Bump*v. *Daheny*(36 N. Y. St. Repr. 114), is an authority precisely in point on that question, and its insufficiency is practically conceded on this appeal.

Upon the return day of the summons, no one appeared, on the part of defendant, and judgment was taken against him by default, in plaintiff’s favor for forty-seven dollars and twenty-five cents, debt and costs.

The defendant subsequently appealed to the County Court of Oswego county, where the judgment of the justice was affirmed, and from such judgment this appeal is brought.

There is no statute giving a justice of the peace authority to enter judgment against a defendant on default, unless the summons has been personally served upon him, except the provisions of section 2918 of the Code. By that section it is provided that when a defendant does not appear, and the summons has not been personally served upon him, nevertheless judgment may be rendered against him if his property “ has been duly attached by virtue of a warrant that has not been vacated.” The section further provides *600tliat tbe judgment so rendered is only presumptive evidence of indebtedness, and that it can be satisfied by execution only against tbe property so attached.

In tbe case at bar, therefore, tbe justice bad no jurisdiction to enter judgment against defendant, unless bis property bad been “ duly attached by virtue of a warrant that bad not been vacated."

It is true that tbe warrant which the justice assumed to issue bad never been vacated, but can it be said that defendant’s property bad ever been “ duly attached ” by virtue of it ? I think not. Tbe attachment was entirely unauthorized. It ought never to have been issued, and tbe property of tbe defendant ought never to have been taken upon it.

By section 2916, the justice is given authority, “ on bis own motion,” to vacate tbe attachment on tbe return of tbe summons *“*if be deems tbe papers on which it was granted insufficient to authorize it.” Reading all these provisions together, I think it is the duty of a justice, on the return of a summons that has not been personally served, to enter judgment by default *only*when the record shows an attachment lawfully issued and regularly executed. For the want of a personal service of summons, he has never acquired jurisdiction over the person of defendant, and for the want of an attachment lawfully issued, the proceeding against the property of defendant is utterly unauthorized.

Not even as against the property attached has he acquired any jurisdiction, for clearly he cannot do so, by issuing a process he had no authority to issue, nor by omitting to vacate such a process after having assumed to issue it. On the return of the summons, therefore, the justice should have treated the case as if no attachment had ever been issued, and his entry of judgment by default against defendant was, therefore, unauthorized.

The respondent’s counsel claims that the defendant does not dispute the validity of the debt; that the errors alleged are purely technical, and that, therefore, under section 3063 of the Code, the County Court correctly affirmed the judgment. The difficulty with that argument is that the error complained of is not by any means a technical one. The question presented by this appeal is whether a justice of the peace may enter judgment against a party on default without first having, by some lawful process, acquired jurisdiction *601to do so. In tbe course of this action, tbe defendant lias not, as yet, been called upon to question tbe validity of tbe plaintiffs claim. When he shall have been lawfully summoned into court, or when bis property shall have been lawfully subjected to tbe judgment of tbe court, by tbe service of a lawful process against it, it may be that be will successfully defend against tbe plaintiffs claim; and until be lias been called upon to make bis defense, it can hardly be said that *“*justice lias been done ” by rendering any judgment whatever against ,liim.

It does not appear, therefore, that tbe *a/niount*of tbe judgment even, is correct, and it does appear that tbe justice bad no jurisdiction to render any judgment whatever against defendant. To such a case, section 3003 does not apply, and tbe judgment of tbe justice should have been reversed.

MeewiN, J., concurred in result; HabdiN, P. J., not voting.

Tbe judgment of the County Court arid of tbe justice should be reversed, with costs.