Muldrow v. Bates

Opinion delivered by McGirk, Judge. The plaintiff in error, Muldrow,. was sued in the circuit court ot Marion county, by a proceeding enacted by the statute of the State — a petition and summons; a writ issued on the same,commanding the sheriff' of Marion county to summon the defendant to appear on a certain day in the circuit court, to answer the plaintiff the demand. The sheriff returned on the writ, that he had served the same by reading the summons to the defendant; but tha sheriff’ failed to say on his return whether he had or not [215] head the petition to the defendant. On the return day of the writ, the defendant failed to appear to the suit, and a judgment was taken against him by default. During the'same term, he appeared and moved to set aside the judgment by default, which the court refused to do; to reverse which, the cause is brought to this court. Several errors are assigned, but the only one relied on is the refusal of ihe court to set aside the judgment by default. When the cause was called for argument, the defendant in error moved the court for leave for the shferifF to now amend his return. 7 his leavens resisted by Messrs. Carnegy and Bates, for the plaintiff in error; add supported by Mr. Wright, for the defendant. In petition and summons, the sheriff's return stated that he had read the summons to defendant, but did not state that ie had either read the petition or left a copy, &c. Held, ihat ‘after judgment by default, the return of the sheriff may be amended, in pursuance of the 7th and 8th sec. 6th art.of the act respecting practice at law, either in the circuit or supreme court. To support the motion, the counsel for the defendant, cites and relies on the 7th and 8th sections of the 6th article concerning practice at law, Rev. Code, 468-9. The 7th section says, that when a verdict shall hake been rendered in any cause, the judgment thereon shall not be staj ed; nor shall the judgment upon stich verdict, or any judgment upon confession, default, &c. be reversed, impaired, or in any way affected, by reason of the following irnperfectiohs: omissions, delects, matters or things, or any of them, in the pleading, process, proceeding, or record — namely: First. For want of any Writ, original or judicial. Second. For any default or defect of process, or for misconceiving any process, or awarding the same to' a Wrong officer, &c. Third. For any imperfect or insufficient return of ahy sheriff, or other officer, or that the name of such officer is not sei to anv return actually made by him. The section then proceeds to enumerate, in all, about twenty other things, in like manner. Then the 8th section says, the omissions or imperfections, defects and variances, in the preceding section enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit,ahd not altering the issues between the parties on the trial, shall be supplied and amended by the court, where the judgment shall be given, or by the court'into which such judgment shall be removed by writ of error or appeal. it is insisted by the counsel for the defendant in error,that the third specification in the 7th section is exactly the thing which may. be amended. 1 have no doubt that it is so. The specification is, that a judgment shall not be stayed or reversed for any imperfect or insufficient return of any sheriff. In the case at bah, the return is, [216] were it not for the statute, clearlv both imperfect and insufficient, for t.,e law requitestlmt the petition ¡.hould be read to the party, or in some cases a copy letl at his usual place of abode; were it not for the statute, the judgment would be reversed; and were it not for this statute, the court below ought to have set aside the judgment by .default.. If the application to amend bad been made in the circuit court, I think the motion should have been granted, for toe 8i.h section expiessly says it shall beso. But the fiist part ot the 7th section say», for this delault and defect the judgment shall not be reversed in any ■ event; and the 8th section says, the supreme curt shall supply this very delect, and all others of a like kind: provided suco others shall not be against the right and justice of the mutter of the suit, and not altering the issue between the parlies on the trial. But the counsel insist that all the defects before named in. the 7t.h section, and those of like kind, are alike subject to the condition, that they must not be against the right of the matter of the suit, and do notaltei the issue on .the trial between the parties. 1 do not think this a fair reading of the statute,. I admit, however, there is some difficulty in the matter,, and the difficulty is this: the 7th section says the judgment shall not be reversed for this defect, and yet the 8th section allows the. defect, to he amended by this court. Why the thing should be amended at all, if no consequence is io flow from the neglect, I cannot see. The fact that the 8th sec. allows the amendment to be made, proves the legislature did not mean quite as much as expressed in the 7th section. If the judgment is not to be reversed, the amendment is useless. On this, my difficulty rests. But 1 believe the best way is to peimit the amendment to be made, and if the truth should turn out to be that the petition, as well as the summons, was read,, then all will be right But it the truth should he otherwise, then tiie plaintiff' in error will he entitled to a reversal of judgment,on the ground that the. service was insufficient. It is objected, that to allow the amendment will be theexerciseot original jurisdiction, as ihat matter never passed before the court; 1 do not so understand the matter. We might as well he told that the same brief and speech ctf the parties, in the court below, should be brought up here, as to say this. It is objected that, in regard to making amended returns, the slmriiF is no officer of this court, and that he is not responsible.ibr the falsity of such return. I ask how can that he? The law says the ametidthent cap be made here; indeed it says [217] il shall be made here. This is the language of the 8th section, il it is made here by the sheiid', ne is bo.,nd to make it according to truth. My opinion is, that ihe amendment ought to be allowed, though ido not say I am entirely dear. Edwards, Judge. — 1 concur. Tompkins, Judge. — I concur in this opinion, entertaining little or no doubt of the correctness oi the decision.