Tokay Heights Development Co. v. Hull

BEAN, J. The plaintiff moves to dismiss this appeal for failure to serve an undertaking. The defendant moves to correct the return of the sheriff to show the true date of the service of a copy of the undertaking on appeal. A decree was rendered on June 2,1917. On July 28th, notice of appeal was served and filed in the Circuit Court. On August 1st, an undertaking on appeal was filed with the certificate of the return of the sheriff indorsed thereon to the effect that the same was received by him on July 31, 1917, and served upon the respondent company on August 1, 1917, together with a copy of the notice of appeal. The transcript was filed in this court on August 30, 1917, containing a copy of the decree appealed from, the notice of appeal with return of service thereof, and a copy of the undertaking with no proof of its service. On August 31st, and within the time allowed for filing the transcript herein, a copy of the undertaking on appeal with the return of service by the sheriff indorsed thereon was filed in this court. 1. It is the contention of the respondent that thé undertaking on appeal was never served and that the transcript was prematurely filed before any such service. The sheriff makes affidavit on behalf of thp plaintiff that he served no papers in the case pertaining to the appeal after the service of the Notice of 161 appeal on July 28, 1917, and that no undertaking on appeal was served by his office on August 1, 1917, or at any time. For the defendants the sheriff makes a further affidavit in explanation and to the effect that on July 28, 1917, Paul E. Blanchard, attorney for defendants, placed in his hands some papers relating to this appeal for service upon the plaintiff; that he does not remember what they were, and that he immediately served the same; that if an undertaking on appeal was given him he served it. It is shown by the affidavits of Paul E. Blanchard, of the agent of the surety company who signed the bond, and of two witnesses thereto, that the undertaking on appeal was signed on July 28, 1917, although it bears the erroneous date of July 30th, which was the cause of an error as to date in the return of service of the same. Mr. Blanchard further deposes that he placed copies of the notice of appeal and undertaking in the hands of the sheriff on July 28, 1917, for service upon the plaintiff. The return of the sheriff of the service of the undertaking on appeal is not overcome or refuted. The proof of service is of record and is sufficient. 2. The motion also relates to the dealing of the defendants with the property involved. This matter pertains or is closely related to the merits of the case and should not now be considered. The motion to dismiss is denied and the defendants allowed to correct the return of the sheriff as to the date of service of the undertaking on appeal. Motion Denied.