When jurisdiction is complete.

upon the defendant; but he may disprove the facts set forth in such affidavit or return, on motion to set aside the return. Van Rensselaer v. Chadwick, 7 How. 297; Litchfield v. Burwell, 5 id. 341; S. C., 1 Code R. N. S. 42; 9 N. Y. Leg. Obs. 182; Wallis v. Lott, 15 How. 567. But the return of a sheriff cannot be impeached collaterally but only by direct proceedings to which the officer is a party, or upon summary application to the court to correct or set aside the return. Sperling v. Levy, 1 Daly, 95. When the sheriff's certificate or affidavit of service is impeached it must be sustained by counter affidavits, or it will be insufficient. Hunter v. Leslie, 10 Abb. 260; S. C., 18 How. 347.

ARTICLE X.

WHEN JURISDICTION IS COMPLETE.

Section 1. When service has been made according to law. A court can acquire a limited jurisdiction in an action by the allowance of a provisional remedy. Code, § 139. But jurisdiction does not become complete until the service of a summons in some of the modes prescribed by law, or by the voluntary appearance of the defendant. Akin v. Albany Northern R. R. Co., 14 How. 327; Kendall v. Washburn, id. 380; In re Griswold, 13 Barb. 413; O'Hara v. Brophy, 24 How. 399; Diefendorf v. Elwood, 3 id. 285; S. C., 1 Code R. 42; Williams v. Van Valkenburgh, 16 How. 144.

Section 2. Laches. It is a well-settled principle, that, if the court has failed to acquire jurisdiction by the service of process, it cannot gain it by any delay on the part of the defendant in raising an objection to the invalidity of the proceedings. Laches cannot confer jurisdiction, and although it may waive an irregularity, it cannot impart vitality to a void judgment. Titus v. Relyea, 16 How. 371; S. C., 8 Abb. 177; Williams v. Van Valkenburgh, 16 How. 144; Bulkley v. Bulkley, 6 Abb. 307; Peck v. Cook, 41 Barb. 549; Fiske v. Anderson, 33 id. 71; S. C., 12 Abb. 8.

Return of process-Filing papers by sheriff or attorney.

ARTICLE XI.

RETURN OF PROCESS.

Section 1. Mode of return. It is the duty of the sheriff to make a proper return of process. If he does not do so personally, he must at least see that it is done. If he makes a return by mail, he must prepay the postage, whether any money has been advanced for this purpose or not. Jenkins v. McGill, 4 How. 205. A return is made by delivering the summons to the party who subscribed it, together with the proof of service, or, if for any reason the service has not been made, with the indorsement of the facts excusing non-service. Either party may compel a return. Ib.

Section 2. Compelling return. At any time after the day when it is the duty of the sheriff or other officer to return, deliver or file any process or other paper, by the provisions of the Code of Procedure, any party entitled to have such act done may serve on the officer a notice to return, deliver, or file such process or other paper, as the case may be, within ten days, or show cause, at a special term to be designated in such notice, why an attachment should not issue against him. Rule 10, Supreme Court.

Section 3. Filing papers by sheriff or attorney. The undertakings given upon procuring an order of arrest, an injunction or an attachment, must be forthwith filed with the clerk of the court by the plaintiff's attorney, under the penalty of having the proceedings vacated for irregularity. The attorney is also required to file at the same time the affidavits upon which these provisional remedies have been granted; and also the affidavit upon which an order for the publication of a summons, or an order for substituted service has been granted, together with the order. Rule 5, Supreme Court; Code, § 423.

The sheriff is required to file with the clerk the order or process and original affidavits upon which an order of arrest is made within ten days after the arrest. Rule 6. He may be compelled to perform this duty by proceedings under rule 10.

And it is a general rule of the court that, when any order on a non-enumerated motion is entered, all the papers used on the motion must be filed with the clerk, or the same may be set aside as irregular. Rule 7.

CHAPTER III.

PROCEEDINGS BY THE PLAINTIFF AFTER THE SERVICE OF THE SUMMONS AND BEFORE PLEADING.

ARTICLE I.

SEE THAT THE SUMMONS IS SERVED ON ALL THE PROPER PARTIES.

In every action, the proper service of the process by which it is commenced is one of the most important steps in the proceedings; and the plaintiff should carefully scrutinize the manner in which such service has been made, and guard against any irregularity that may give even a temporary advantage to the adverse party. It is often important that a full and complete service of the summons should be made on each defendant in the action, even where a service on one or more, but not on all, would give the plaintiff power to enter judgment against the joint property of all, in case of a default, or successful termination of the action at the trial. Code, § 136. To see that such service has been made should be one of the first proceedings on the part of the plaintiff. Where mere nominal parties are made defendants, against whom no personal claim is made, the service of the proper notice with the summons is important, and should never be omitted. Code, § 131. Care on the part of the plaintiff, in securing the proper service of the summons and the accompanying notices, if such notices may be necessary or proper, will often avoid serious embarrassment and delay in the conduct of the action, even where no amendment may be absolutely indispensable to the validity of a subsequent judgment. As to the proper parties to be made defendant, see Parties Defendant, ante, 120 to 140.

ARTICLE II.

SEE THAT PROVISIONAL REMEDY HAS BEEN EXECUTED.

If a provisional remedy has been allowed in the action, the plaintiff should see that it has been carefully executed. By neglecting this precaution all the advantages arising from a successful prosecution of the action may be lost through a lack of

Procure papers for framing complaint.

control over the person or property of the defendant prior to judgment. Not only is it essential that the provisional remedy should be executed, but the manner in which it has been executed is equally important and worthy of careful scrutiny. If an order of arrest has been allowed, and the defendant has been arrested thereon, and bail is offered for his appearance, the plaintiff should inquire as to the sufficiency of such bail, and guard against a worthless undertaking. Code, § 192. The same precaution is necessary in all actions where a provisional remedy has been allowed, and an undertaking offered or given. Code, §§ 210, 241.

But while the plaintiff should provide that none of his rights are imperiled by any neglect of duty on the part of the sheriff, he should also avoid making the officer his agent by unnecessary interference, as this would be fatal to any claim for damages for misfeasance that otherwise might be enforced against the sheriff or his bondsmen. Root v. Wagner, 30 N. Y. (3 Tiff.) 9.

A full discussion of the necessary steps in the enforcement of a provisional remedy may be found in the succeeding chapters in this work.

ARTICLE III.

PROCURE PAPERS FOR FRAMING COMPLAINT.

Where the complaint has not been served with the summons, the plaintiff may desire to obtain more accurate information of matters on which to frame his complaint, from books or papers under the control of the defendant. If an inspection of such books or papers is absolutely necessary before the plaintiff can intelligently frame his complaint, an order for a discovery may be obtained either in pursuance of the provisions of the Revised Statutes, or of the Code. 2 R. S. 199 (207), § 21, Edm. ed.; 3 R. S. (5th ed.) 293, §§ 60, 61, 62; 4 Edmonds' Statutes, 550; Laws of 1841, ch. 38; Code, § 388; Rule 18, Supreme Court. But the court will not grant this order unless the plaintiff can clearly establish a right to the remedy. When this can be done the plaintiff should prepare his petition and make an application for an inspection under rule 19 of the supreme court. See Discovery of Books and Papers. See Hoyt v. American Exchange Bank, 8 How. 89; S C., 1 Duer, 652; Thompson v. Erie Railroad Company, 9 Abb. N. S. 212, 230; Morrison v.

Examination of parties - Serve the complaint - File all papers.

Sturges, 26 How. 177; Julio v. Ingalls, 17 Abb. 448, note; Walker v. Granite Bank, 19 Abb. 111; S. C., 44 Barb. 39.

ARTICLE IV.

EXAMINATION OF PARTIES.

Either party may be compelled to submit to an examination before the trial, or even issue joined, for the purpose of disclosing matter material in aid of the prosecution or defense. Code, § 391. Whenever the plaintiff shall find it necessary to examine the defendant before pleading, he should prepare an affidavit disclosing the nature of the discovery sought, and how the same is material to the framing of his complaint. Code, § 391. Rule 21, Supreme Court. The defendant may be compelled to appear before a judge of the court, or a county judge, and testify in relation to the facts sought to be discovered under the penalty of a commitment as for a contempt, and a forfeiture of all rights to defend in the action. Code, §§ 392, 394. See Examination of Parties.

ARTICLE V.

SERVE THE COMPLAINT.

Where no complaint was served with the summons, and the defendant has appeared and demanded the same in writing, the plaintiff must serve the complaint within twenty days from the service of the demand, if the same was made personally; or if the demand was served by mail, within forty days from such service. Code, §§ 130, 412. The complaint may be served personally or by mail, and need not be served until the last day allowed for such service. If the time for service is insufficient, it may be enlarged on application to the court. Code, § 405. See ante, 504.

ARTICLE VI.

FILE ALL PAPERS.

If a provisional remedy has been allowed in the action, the plaintiff's atttorney should forthwith file with the clerk all undertakings given upon procuring the order, as well as the