Wyman v. Hoover

The opinion of the Court was delivered by Willard, C. J. Judgment by default, for want of an answer, was entered in this action. The defendant, J. A. Hoover, moved to set aside such judgment as irregular, for want of service of the summons on such defendant. It appears by the affidavit of Bellin-ger, Deputy Sheriff, that the summons and complaint were delivered by him to Hoover for service on -the defendant J. A. Hoover, and by the affidavit of Glover that such service was not made. Allusion is made in the argument to a return of service made by the Sheriff; but no evidence that such a return was laid before the Circuit Judge upon the motion appears by the record before us, and the case must be determined on the papers that appear to have been before the Circuit Judge for that purpose. The Circuit Judge an [137] nounced his decision as follows: “It appearing to my satisfaction that the proper remedy in the above stated case is by appeal, and this Courtis without jurisdiction in the matter, on motion of'W. J. Whipper, it is ordered that the motion for a rule be dismissed, and the plaintiffs have judgment for ten dollars — cost of this motion.” The position assumed by the Circuit Judge is unintelligible to this Court. Whether the Circuit Judge has succeeded in expressing the nature of his doubt as to his right to interfere in the premises, we have no means of determining. The doubt of the Circuit Judge as to his jurisdiction has no legal foundation; and the idea that relief could be obtained on appeal that was not proper to be given by the Court of Common Pleas involves an entire misconception of the nature of original and appellate jurisdiction. As the case stands, it was a matter of course for the Circuit Judge to set aside the judgment and admit the defendant to answer. The order appealed from, with the judgment and execution as against the defendant, J. A. Hoover, must be set aside, with liberty to the defendant to answer in ten days from the service of this order, and with costs of motion in the Circuit Court and of this appeal. Mclver, A. J., and Haskell, A. J., concurred.