TITLE V. Of the Manner of Commencing Civil Actions. SECTION 127. Actions, how commenced. 128. Summons, requisites of. 129. Notice to be inserted in certain actions. 130. Complaint need not be served with summons. stated in summons and proceedings thereon. In such case what to be 131. Defendant unreasonably defending, when to pay cost. 132. Notice of pendency of action affecting title to real property. 133. Summons, by whom served. 134. Suminons, how served and returned 135. Publication when defendant cannot be found. 136. Proceedings when there are several defendants, and part only served. 137. When service deemed made in case of publication. 138. Service of summons how proved. 139. When jurisdiction of action acquired. § 127. Actions, how commenced. (Same as § 106 in 1848.) Civil actions in the courts of record of this state shall be commenced by the service of a summons. 1. Q. What is a civil action? Questions. 2. Q. Is a summons now the process of the court as was formerly a capias? 3. Q. Is the service of a summons the only mode of bringing a party into court? 1. Q. What is a civil action? A. The answer to this question will be found under section 2, Questions 4 and 7. 2. Q. Is a summons now the process of the court as was formerly a capias? A. In Blanchard agt. Strait. 8 How., 84, Special Term, March, 1853, CRIPPEN, J., it was decided, that a summons by which an action is commenced is the process of the The court from which it issues is required to be designated therein, and it should be governed and regulated by the rules of practice formerly applicable to a capias, so far as those rules can properly be made to apply. court. 3. Q. Is the service of a summons the only mode of bringing a party into court? And where A. In Aiken agt. The Albany Northern Railroad Company and others, 14 How., 337, Special Term, August, 1856, HARRIS, J.. it was decided, that there is no other mode of bring ing a party into court against his will, except by the service of a summons. a plaintiff amended his complaint by adding parties, and then proceeded to judgment without serving the summons on such added defendants; held, that he was irregular. The action was brought to obtaiu a specific performance. The suit was originally commenced against the Albany Northern Railroad Company as sole defendant. The plaintiff alleged in his complaint that, on the 23d of July, 1852, he conveyed to the defendant a right of way over his land for the track of its road; and that, in and by the conveyance, the defendant covenanted and agreed to construct and maintain, over its road, certain crossings for the use of the plaintiff; and, although the defendant had accepted the conveyance and taken possession of the road, the crossings had not been constructed. The defendant appeared and put in an answer, and, on the 25th of March, the issue was noticed for trial at a special term to be held on the 14th of April. On the first of April the plaintiff, upon dae notice, obtained an order that Chauncey Vibbard, John L. Schoolcraft and Andrew White, who had been appointed receivers of the Albany Northern Railroad Company, be added as parties defendants, and that the pleadings and proceedings be amended by adding said receivers as parties, and that the plaintiff have liberty to amend his complaint by inserting therein the necessary allegations to connect the said parties defendants with the cause of action set forth in the complaint. The receivers were not served with a copy of the order, or with a summons or complaint, but without further notice the plaintiff proceeded, on the 25th of April, to take judgment against all the defendants by default. HARRIS, J., said: "Civil actions, in the courts of record of this state, shall be commenced by the service of a summons." This is the mandate of the legislature, and I know of no other mode of bringing a party into court against his will. Until served with process, the court has no jurisdiction over him; and yet, in this case, we have three persons made defendants in an action, and that action brought to trial, and final judgment rendered against them, without service of process, or any other notice except that an application would be made for leave to sue them. The record of the judgment presents the anomaly of a suit commenced against one defendant, a complaint against the same defendant, and then a final judgment against three persons who are strangers to the pleadings; their names appear for the first time in the judgment. It needs but to state the facts to show that the proceedings cannot be upheld. In O'Hara agt. Brophy, 24 How., 379, General Term, February, 1863, SCRUGHAM, J., it was decided, that it is not necessary to the commencement of any action that a copy of the complaint be served upon the defendant; he is brought into court by the summous alone. The judge said: The provision that a defendant upon whom the notice prescribed by section 131 is served, shall pay costs if he unreasonably defend the action, does not deprive the court of the power in equity cases to award costs for unreasonably defending against defendants upon whom a copy of the complaint, but no such notice, has been served. It is not necessary to the commencement of any action that a copy of the complaint be served upon the defendant; he is brought into court by the summons alone. In equity cases this gives him no information of the cause of action or of the nature of the relief sought against him; a copy of the complaint would afford it, but as the complaint may be, and in such cases generally is, voluminous, the notice is provided as a short substitute calculated to convey to the defendant all the information necessary to acquaint him with the nature and object of the action, and of the extent to which his rights will be affected by it, and upon which a defendant, against whom no personal claim is made, may safely determine whether it will be necessary for him to take any proceedings in the action. The complaint furnishes this information more fully than the notice, which is nothing more than an abstract of it, and it is not necessary to serve the notice in case a copy of the complaint is served with the summons; for it would cer tamly be as improper for a defendant in that case unreasonably to defend the action as it would be if, instead of a copy of the complaint, a notice of the object of the action had been served upon him, and the court, exercising its discretion in the awarding of costs, would doubtless award them against him in the one case as freely as in the other. In Monroe agt. Galveston, 19 Abb., 90, Special Term, May, 1862, ROBERTSON, J., said: This is a creditor's complaint against a foreign corporation, who are made parties to the suit; but no service has been made upon them of any summons to bring them within the jurisdiction of the court. They are clearly necessary parties to the action, and they are not made parties simply by naming them as such. I do not think the 270th section of the Code will cover such a case, as no future judgment cau be made against the company distinct from that to be made against the other defendants. They must therefore be brought in before the action is in readiness for hearing. 4. Q. Can an action be commenced upon a promissory note on the last day of grace? A. In Osborne agt. Moncure, 3 Wend., 172, General Term, August, 1829, SUTHERLAND, J., said: The only question in this case is, whether the suit was prematurely com menced. It is admitted that the writ was served before three o'clock P. M. of the third day of grace, payment having been previously regularly demanded and refused; the defendants having failed some days before. It is not denied that the maker is entitled to the days of grace. (2 Cor. 766; 8 Cow. 205, and the cases there cited; Chitty on Bills, 420, 1.) Notice to the indorser on the third day of grace, after a demand upon the maker and his default of payment, is good, although it need not be given until the following day. It being earlier than is required, cannot form any objection on the part of the indorser. (1 Johns. C. 328; Chitty on Bills, 365; 3 Campb. 193.) The demand upon the maker should be made upon third day of grace, and within a reasonable time before the expiration of the day (2 Caines, 244; 12 Johns. R. 424); and if he then refuses payment, the holder has done all that is incumbent upon him to do, and may treat it as a dishonored bill, so far as immediately to give notice to the indorser; but still I apprehend the maker has the whole of the day to pay in, if he thinks proper to seek the holder. It is undoubtedly true in relation to other contracts, that the party has until the last instant of the day to make payment; and I perceive no reason for making negotiable paper an exception to the general rule. (3 Bos, & Pul. 602; 4 T. R. 170; Chitty on Bills, 375, notes.) Mr. Chitty seems to think the rule is differently settled. The case of Crygier agt. Long (1 Johns. Cas. 393), and Lawrence agt. Bowne (2 Johns. Cas. 225), seem to decide, that $127.] SUMMONS. after appearance and pleading in chief, a defendant cannot object, the suit being upon a note that it was commenced before the note was due; and it is there said that he should But. upon general principles, I do apply to the court to be discharged from the arrest. not see how a defendant can be deprived of the benefit of such a defense upon the trial. The plaintiff, under the plea of non assumpsit, is bound to show a good cause of action at the time of the commencement of the suit, and the defendant may give in evidence any thing which shows that the plaintiff had not such cause of action at that time (1 Phil. E. 131). It is well settled that the issuing of the capias is the commencement of the suit, and the plaintiff's cause of action must exist at that time. (3 Johns. Cas. 149: 1 premaCaines, 69, 72; 3 id. 133; 2 Johns. R. 346; 3 id. 42; 10 id. 119; and 8 Com. 205, where the cases are collected.) Mr. Chitty (1 Chitty's Pl. 443), says, that where a suit is turely brought, it is ground of demurrer or nonsuit. This appears to me to be the true rule. I am, therefore, of opinion that the judge ought to have nonsuited the plaintiff. In Smith agt. Aylesworth, 40 Barb., 104, General Term, September, 1863, JOHNSON, J. The action brought by the payee, against the maker, of the note in question. Of course no demand was necessary in order to charge the defendant. The only question. in the case is whether the action, having been commenced after banking hours at the bank where the note was payable, on the last day of grace, is not prematurely brought. This precise question was decided in Osborn agt. Moncure (3 Wend. 170), upon full argnment and mature deliberation. That case, like this, was an action between payee and makers, and the action was brought before three o'clock in the afternoon of the last day of grace, but after demand of payment and refusal. The court unanimously held that the makers had the whole of the third day of grace in which to make payment, and that an action commenced upon the third day, though after demand, was SUTHERLAND, J., who delivered brought prematurely and could not be maintained. "It is undoubtedly true in relation to other contracts, the opinion of the court, says: that the party has until the last instant of the day to make payment; and I perceive no reason for making negotiable paper an exception to the general rule." It would be Negotiable paper, by law, difficult to assign any valid reason for any distinction. becomes due on the third day of grace, precisely as other contracts do on the day when the term of credit expires according to their date, and not otherwise in any respect, that The only I am able to perceive. That is the law in regard to such paper, and it is part and parcel of the obligation, precisely as much as though it were written in the note. difference between the two cases is, that in this case the note was payable at a bank, while in that case it was payable generally, at no particular place. But in that case demand was actually made before action brought, and no question raised that the demand was insufficient, or in any respect improper. There is no essential difference, I am aware that the rule is laid down differently in Chitty therefore, in the two cases. Parsons, in his recent work on on Bills, which the court notice in the case referred to. notes and bills, also lays down the rule as follows: "We are of opinion that after demant and refusal on that day an action may be at once maintained." He also says: "But without such prior demand and refusal, ar action commenced on the day of matur ity is premature, unless the note is payable at a bank, when it seems that a suit may be commenced after bank or business hours." (2 Purs. on Notes and Bills, 461 462.) Several cases are cited, decided in other states, to sustain the rule as laid down in the text, though the author admits that the rule may not be positively determined by authority. If it be true, as our supreme court has decided, that the maker has up to the last instant of the last day of grace in which to make payment, as part of his contract, I do not see how a demand before that time, or the expiration of the business hours at a bank where the note is payable, can alter the time of the note becoming due and payable. Generally the law does not notice the fractions of a day, and it is difficult to see how the act of a payee or holder, in making demand of payment at any particular hour in the day, or the custom of a bank in closing its doors at a particular hour, is to work a severance of time, so that a note payable on a particular day, and not at any specified hour of such day, shall be both due, and not due, on the same day. Certainly there is nothing in the contract, nor, so far as I am advised, in the mercantile custom, by which a payee by his own voluntary act can shorten the day or the hour of payment. It seems to me our rule is the only safe and consistent one, and that it ought to be followed, especially by this court. All that is decided in the Bank of Syracuse agt. Hollister (17 N. Y. Rep., 46). is that a presentment of a note and demand of payment by a notary, of himself, at the bank door after banking hours and after the bank was closed, was a sufficient presentment to charge an indorser. This only relates to the rule between holder and indorser, and is to the effect that a holder is not confined to banking hours in making his demand, but may make it at any time in the day, afterwards, provided he If this decision has any bearing upon can find a proper person at the place, to answer. the present case, it is rather against the plaintiff than in his favor. It necessarily holds that the demand was made before the time for the payment of the note had expired. Otherwise the demand could not have been held sufficient to charge the indorser. On the whole I am of the opinion that the action was prematurely brought, and that the nonsuit should have been granted. In Oothout agt. Ballard, 41 Barb., 33, General Term, January, 1864, MASON. J., said: The only question presented in this case is whether a snit can be maintained against the indorsers of a note payable at a bank, and which has been duly protested, where the suit is commenced on the day of protest, or the third day of grace. The rule in England, as understood by Chitty, is that the suit on the third day of grace is premature. (See Chitty on Bills, 406. 407, 409, 8th Lond. ed.) And such I unde stand to be the rule held in Westminster Hall. (Castraque agt. Bernabo, 6 Queen's B. R. 483; Lifferty agt. Mills, 4 T. R. 170.) The rule is so understood by Byles. (See his late work on Bills. p. 181.) In this country there is certainly considerable conflict of authority over the question, in the courts of the different states. The courts of Maine, New Hampshire, Massachusetts, South Carolina,and some others, have held that the suit could be commenned on the third day of grace, at any time after the close of banking hours and proper protesting of the note. (Pick. 401; 21 id. 310; 8 id. 414; 1 Metc. 43, 48; 4 Greenl. R. 479; 7 N Hamp. R. 199; 8 Foster, 302; 4 Humph. 241; 5 Shep. 230; 31 Maine R. 580; 40 id. 62; 15 id. 67. Wilson agt. Williamson, Nott & McCord, 440.) While on the other hand the courts of Pennsylvania, Ohio, Illinois. Mississippi, Alabama, and some others, have held the suit prematurely brought if commenced on the third day of grace. (Thomas agt. Shoemaker, 6 Watts & Serg. 179; Walter agt. Kirk, 11 Illinois R. 55; Wiggle agt. Thomason, 11 Smedes & Marsh, 452; Beavan agt. Eldridge, 2 Miles, 353; Randolph agt. Cook, 2 Porter, 286; 5 Serg. & R. 318.) The rule in this state has long been regarded as settled that the suit commenced on the third day of grace was prematurely brought The question came before the supreme court in Hogan agt. Cuyler (8 Cow. R. 203), wher it was held to be premature to commence the suit on the third day of grace. The question was distinctly presented again in Osborne agt. Moncure (3 Wend. 170), when it was distinctly held the suit could not be maintained when commenced on the third day of grace. Chief Justice SAVAGE regarded the rule so well settled with us, in this state, that he held in Hopping agt. Quin (12 Wend. 517), that where an attorney commenced a suft upon a note on the third day of grace, and was beaten, and then brought suit against his client to recover for his services, he was not entitled to recover; and in speaking upon this question he says: "It was the duty of the plaintiff to have known that a suit could not be brought on the last day of grace; and his bringing such a suit must be imputed either to negligence or ignorance. In either case it lays no foundation for an action against his client, who has been the sufferer." There is no case in the courts of this state to the contrary of these cases, while all the elementary books have treated our law in this state as settled in conformity to these cases. Judge CoWEN so regarded it when he wrote his treatise (1 Cow. Tr. 220, ed. 1814), where he lays down the doctrine distinctly, that the suit cannot be maintained if commenced on the last day of grace. And so Edwards regards it in his treatise on Bills and Notes (see pages 525, 526, 527); and the rule in this state is so regarded by Farsons in his treatise. (See vol. 1, p. 440, and also note i.) Chief justice SHAW regards our rule in this state as different from theirs. (1 Metc. 54.) The rule in England seems to have conformed to a general practice-the practice to postpone notice of the dishonor and other proceedings till the day followingso that it has been regarded amongst merchants as a right to have all of the last day of grace in which to pay. In Hartley's case (1 Carr & P. 555), ABBOTT, Ch. J., on a motion to show cause, said: "I think the notice of dishonor given on the day on which the bill is payable will be good or bad as the acceptor may or not afterwards pay the bill. If he does not afterwards pay, on that day the notice is good, and if he does it of course comes to nothing." And Bules, in his late valuable treatise on Bills, page 131, says: "The acceptor of a bill, whether inland or foreign, or the maker of a note, should pay it on demand made at any time within business hours on the day it falls due, and if it be not paid on such demand, the holder may instantly treat it as dishonored. But," he adds, "the acceptor has the whole of that day within which to make payment, and though he should in the course of the day refuse payment, which entitles the holder to give notice of dishonor, yet if he subsequently on the same day makes payment, it is good, and the notice of dishonor becomes of no avail." This is precisely as I understand the rule with us. Now, if we admit that the courts of Massachusetts, Maine, New Hampshire, &c., have the better reason for their decisions, there is no such great principle involved in the case as would justify us in overruling our own cases and following theirs; especially so where we are supported by equal weight of authority on our side; and Parsons, who is an earnest advocate on the other side, admits that there is strong reason for holding that a party bound to pay has the whole of the day of maturity." (Parsons on Notes and Bills, vol. 2, p. 460.) And our rule has certainly one advantage; it tends to uniformity in the law by conforming to the general rule with reference to all other contracts, which holds that when a day is appointed for the payment of money, the payer has the whole of the day, down to the last moment, in which to tender the money. Now as to the notice of the default of the maker, which is required to be given to the indorser, there is certainly no reason in the world why any different rule should be applied to the case of notes or bills payable at bank than in the case of those which are payable at large, or at the place of business of the merchant. The same rule applies in regard to the service of the notice in either case, and the holder is under no obligation to serve the notice any earlier in the one case than in the other. And if he has a right to make an earlier service in the one case than in the other, it should not deprive the maker of his day to seek the holder of the note, and by tendering payment, save a suit. Now if no demand is made, all the cases hold that the maker has the whole day in which to pay (31 Maine R. 580; 2 Parsons on Notes and Bills, 461, note 2). And as there is no necessity or good reason for having one rule applicable to one class of paper and another applica ble to another, I am for adhering to the rule as heretofore held in this state; and I fully agree with what was held by that learned and very able jurist, C. J. GIBSON, in Taylor agt. Jacoby (2 Barr's Penn. R. 495), that a note is not due, for the purpose of commenc ing a suit, until after the termination of the day of payment, although by commercial usage it may be demanded at a reasonable time of that day; that it falls under the general and well settled rule of law which rejects fractions of a day, and which views the day as an indivisible point, and which gives to the maker a day and not the fraction of it. I am, for these reasons, in favor of granting a new trial, costs to abide the event. What is the result of the decisions under this section 1. (2 Q.) A summons is now the process of the court by which an action is commenced. 2. The court from which a summons issues must be designated in the summons. 3. So far as practicable, a summons should be governed and regulated by the rules of practice formerly applicable to a capias. 4. (3 Q.) The only mode of bringing a party into court (by compulsion) is by the service of a summons. 5. If the plaintiff amends his complaint by adding other parties defendants, it is irregular for him to proceed to judgment without serving the added parties with summons. 6. The service of a complaint is not the commencement of an action; the defendant is brought into court by the service of a summons alone. 7. In an action by a creditor against a foreign corporation, the service of summons must be made upon them, to bring them within the jurisdiction of the court. 8. A foreign corporation, who are necessary parties in a judgment creditor's action, are not made parties simply by naming them as such; they must be served with summous to bring them before the court. 9. (4 Q.) An action upon a promissory note cannot be commenced on the last day of grace. 10. If an action is commenced against the maker of a promissory note on the last day of grace, though it be after banking hours, it is prematurely brought. 11. The maker of a promissory note has the whole of the last day of grace to pay it. 12. An action commenced against the maker of a promissory note on the third day of grace, though after protest, will be prematurely brought. 13. As to the time of commencing an action, there is no distinction between a note payable at a bank and one payable at large. § 128. Summons, requisites of. (Same as § 107 in 1848.) The summons shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service. |