Osburne vs. Gilbert

Osburne vs. Gilbert. Where a defendant sued by long summons in a justice’s court, in a different county from that in which he resides, appeared by attorney and put in an answer, the attorney stating that the defendant resided in another county, but he did not plead that fact, nor would he make an affidavit of it; Held that the defendant, by answering, waived any defense on the ground of residence, and thus gave the justice jurisdiction of his person. The case of Clapp v. Gi-aves, (26 J7. 7. Sep. 418,) is decisive in such a case. APPEAL from the county court of Wyoming county. The action was first tried in a justice’s court where the plaintiff recovered, and the defendant appealed to the county court, where the action was again tried. The only question made is that the defendant was a resident of Allegany county, and was sued by a long summons in Wyoming county, and that, therefore, the justice had no jurisdiction, and should have dismissed the case. The case showed that on the return day of the summons the defendant appeared by one Hanks, and he asked one Osburne, who appeared for the plaintiff, if he knew where the defendant resided. Osburne answered he did not know, whether in Allegany or Wyoming county. Hanks said “ I know the defendant is an inhabitant of Allegany county.” He was requested by the plaintiff’s attorney to make his affidavit of the fact, but he excused himself from doing so. The justice said'to Hanks that there was no evidence before him ; that .he was ready to decide when there should be proper evidence. The plaintiff put in his complaint, and the defendant answered, denying all the allegations. .The trial was adjourned, and the parties appeared again, when the defendant offered to amend his answer and set up his non-residence. It was objected that he was too late in doing this, and the justice so held. This question was renewed in the county court, and an offer made, there, to plead the non-residence, which was overruled, and judgment being rendered for the plaintiff, the defendant appealed. [Erie General Term, November 16, 1868. L. Spring, for the appellant. Thomas Corbitt, for the respondent. [MAJORITY — By the Court, Marvin, J.] By the Court, Marvin, J. Clapp v. Graves, (26 N. Y. Rep. 418,) is decisive of this case. The only difference in the two cases is that in that case the issue was joined, nothing being said as to the residence of the defendant; in this case the attorney for the defendant said that the defendant resided in Allegany county; but he did not plead that fact, nor would he make an affidavit of it; and the justice very properly said that there was no evidence of the fact before him; that he would decide when there was. The defendant, by answering the complaint, waived any defense on the ground of residence, and thus gave the justice jurisdiction of his person, and the cause of action was one proper for a justice’s court. The question raised is fully discussed and decided in Clapp v. Graves, and there is no occasion for any further discussion. The judgment must be affirmed. Daniels, Marvin and Barleer, Justices.]