Leitch v. Colson

Wilson, J. The only question arising on this record which it is necessary to consider, relates to the admissibility of parol evidence to contradict the constable’s return. Section 41, chapter 79, Rev. Stat., provides that if a summons is served on one or more but not on all the defendants, the plaintiff may proceed to trial, judgment and execution against the defendants served, and the justice shall, on application of the plaintiff, issue another summons in the nature of a scire facias against the defendants not served, requiring them to appear and show cause why he or they should not be made parties to the judgment. The statute is at once the source and the limit of the justice’s authority, and-which he cannot transcend without rendering his acts invalid. The language of the section quoted is plain and unambiguous. A justice of the peace can issue a scire facias only when one or more of the defendants have not been served with process. When all the defendants have been served, and judgment is rendered against them, the object and purpose of the statute have been accom. plished, and there remains neither the necessity nor the authority for proceedings by scire facias. In the present case it is not disputed that the constable returned the original summons served on both the defendants, and the record of the justice shows that judgment was rendered _ against both. After the return riot satisfied of several executions issued on the judgment, the plaintiff, without making any preliminary proof of the falsity of the return on the original summons, or laying any other foundation therefor, sued out a scire facias against appellant, and upon the trial was allowed by the court to prove by parol that the return was untrue. This ruling was clearly erroneous. It has been settled in this State by a long line of decisions that the return of a sheriff or constable is, as between the parties, conclusive in the same suit, and cannot be contradicted by parol evidence.' The rule is based upon grounds of public policy, and rests upon the same principle that excludes parol proof when offered to vary or contradict a record, namely: the necessity of preserving inviolate public confidence in the stability and certainty of judicial proceedings. In one of the latest cases on this subject, Hunter v. Stoneburner, 92 Ill. 75, the Supreme Court say : “ It is in rare cases only that the return of an officer can be contradicted, except in a direct proceeding by a suit against the officer for a false return. In all other cases, almost without an exception, the return is held conclusive. An exception to the rule is where some other portion of the record in the same case contradicts the return; but it cannot be done by evidence dehors the record.” , In Fitzgerald v. Kimball, 86 Ill. 396, which was a petition for a writ of certiorari, the defendant, for the purpose of showing that the judgment was not the result of negligence on his part, attempted to show in his petition that he was not served with the summons issued by the justice, but the court said: “The statement of the petition in an argumentative recital attempts to show that there was, in fact, no service of the summons. The law does not permit a party in such cases to contradict the return of an officer. The return must be treated as absolutely true.” And in Wilson v. Greathouse, 1 Scam. 174, where the return of the constable failed to show the time of the service of the summons, the court would not permit the plaintiff to prove by parol (the constable being dead) that the service of the process was within the time required by law, and also that the defendant liad admitted the service to have been in time. The court said: “Such a course could never be justified on principle, nor is there, it is believed, a single precedent to warrant such a course.” It will be noticed that the evidence in that case was not offered to contradict the return, but to merely supplement it by fixing the date of service, and the court would not receive it. In Owen v. Ranstead, 22 Ill. 161, the court recognize the same rule. That was a bill in chancery, brought by Owen to obtain relief against a judgment at law, where it was claimed there had been no service of summons, although the return of the officer recited service. The bill having been dismissed in the Superior Court, the complainant appealed. In the Supreme Court appellee’s counsel contended that the complainant could not contradict the sheriff’s return. The court said: “ The general rule is as stated by appellee’s counsel; but it must have its exceptions, in equity at least.” And in another part of the opinion, “ that a court of law cannot -afford such remedy, is certain.” We might refer to many other decisions, not only of our own Supreme Court but of the courts of other States, in which the same doctrine is enunciated, but it is unnecessary to multiply cases. The vacation by appellee of the judgment as against appellant, in no way changed the legal status of the case. If, as we have seen, the return of the constable was conclusive of the fact of the service of the summons on both Leitch and Kelly, it follows that the justice had no authorit}1- to issue the scire facias, since the statute authorizes that writ only in cases where process has not been served on one or more of the defendants. Vacating the judgment was but a declaration of the plaintiff that the summons had not been served; and the plaintiff could not by any mere act of his own invest the justice with a jurisdiction he did not otherwise possess. As the motion to dismiss the scire facias was made before the justice and renewed in the Superior Court, it was made in apt time; and the court erred both in admitting parol evidence to contradict the constable’s return, and in refusing to dismiss the scire facias. The judgment of the court below is therefore reversed. Reversed.