Woods v. Brzezinski

Carpenter, J. A justice of the peace rendered a judgment against the plaintiff and issued an execution. The plaintiff brought this suit to restrain the levy of it. The court below rendered judgment for the defendants and the plaintiff appealed. The first question arises under the plaintiff’s claim that [472] he had no notice of the return day of the original suit. A copy of the complaint was duly left with the plaintiff. The return day was in fact on the second day of February, 1889. The copy was so badly written that he could not tell whether it was the second or third day. By comparing it with other parts of the copy he could have told.- Besides the third was on Sunday. He made no effort to ascertain the correct day until after the judgment was rendered. The court found that the complaint was properly served, and that the defendant in the suit was guilty of negligence in not trying to ascertain the return day if he was in doubt. This is assigned as a reason of appeal. The ruling of the court was clearly right. The plaintiff was bound to take reasonable measures to ascertain the return day. A careful reading of the copy would have told him, especially as the third was Sunday. Inquiry of the officer, or a letter to the justice, would have obtained the desired information. Common prudence suggests that some such measure should have been taken. The refusal to hear evidence as to the merits of the plaintiff’s defense at the time when it was offered was not objectionable. That was only material in case there was no service. As there was service he had allowed the time for making his defense to go by. The execution was against the body of the plaintiff. It commanded the officer to arrest the body of the plaintiff and “ dispose of the same according to law.” The officer who had it to serve, and each of the parties to it, with his counsel, met and discussed, among other things, the validity of the execution. When they separated the plaintiff was allowed to go his own way. That execution was returned or destroyed, and the justice, without noticing it or referring to it, issued another. Before the officer could serve that further proceedings were arrested by this suit and an injunction. On the trial below a question was made whether there was an arrest under the first execution; and if there was, it was claimed that the second was illegal and would not [473] justify an arrest. The court overruled that claim, and that is assigned as error. The court finds that there was in fact no arrest. It is unnecessary to consider what would have been the legal consequences if an arrest had been made. The fact that in issuing the second execution the first was not noticed is of no consequence. If the first was so defective as to be illegal, as claimed, then it was properly treated as void. If not void, still the omission to notice or to state that the second was an alias, did not invalidate the second. There is no error in the judgment appealed from. In this opinion the other judges concurred.