Journey v. Dickerson

Weight, J.— Service of notice and return in actions before justices of the peace are to. be made in the same manner as in the District Court. § 3864. In the District Court service is to be made: 1. By reading and delivering or offering to deliver a copy of the notice. 2. If not found, by leaving a copy thereof at defendant’s usual [311] place of residence, with a member of the family over fourteen years of age. 3. By acknowledgment of service indorsed on the notice, dated and signed by defendant. 4. By publication in the eases contemplated in section 2831. If served personally, the return must state the time, manner and place of making the same, and that a. copy was delivered or offered to defendant. If by leaving a copy with the family, it must state at whose house, and that it was the usual place of residence of defendant; and also the township in which the house was situated, the name of the person with whom left, that such person was over fourteen years of age and was a member of the family. We agree with appellees that the second method, or that pursued in this case, is not to be regarded as constructive service. Nor is it, strictly speaking, ^personal. The fourth method is constructive, the first and third personal, while the second is strictly neither, but rather a substitute for the more legitimate, because safer, service by reading to or acknowledgment b.y the defendant. This mode of service is statutory. It is allowed in most of the States. But for the statute, actual notice of the process Should always be given to the defendant. For the interests to be affected by litigation are regarded so impor. tant that it is not to be left to mere presumption or inference that the party had knowledge of the proceeding, but it should be positively and affirmatively established before further proceedings should be permitted. That this is the rule aside from the statute, see 3 Chitty’s Pr., 144-5, 260, 266; Tidd Pr., 166, 170. The statute, however, allows this substituted 'Service, regarding the presumption or inference fair and legitimate, that a copy thus left will come to the actual knowledge of the'party sought to be charged. And yet this certainty is not actual service; for actual service means personal, either [312] by reading to defendant or delivering to him a copy of tbe process.. When left at the residence, or the substituted mode is adopted for actual or personal, there is no more than a legal presumption that notice thereof does actually come to the defendant. And it would seem to be both fair and reasonable to hold that if a plaintiff depends upon this method for bringing a party«into court, he should, at his peril, see to it that every substantial requirement of the law had been complied with. In the case of actual service, there is certainly much reason in the doctrine that if the defendant is misnamed, he should nevertheless appear and plead the same in abatement, or in some manner raise the objection;' and that if he fails to do so, he shall not afterward be heard (especially in a collateral proceeding) 'to question the regularity of the judgment. For when thus served, he is advised by the writ, the law and its officers, that he is the mcm against whom the judgment is asked, and he, at his own peril, fails to give heed to the command. And when it is said in the elementary books that misnomer is only pleadable in abatement, it can only mean cases of personal service. This is true under the statute of William III and IV, ch. A, p. AS, § 11, which provides for the amendment of the declaration, by inserting the right name, upon the judge’s summons, as under the old practice allowing the plea. For it was only.thus, whether by original or judicial process, that service could be made ; and, therefore, the doctrine that a party could only thus take advantage of a misnomer would not apply in its reason to any other method of service. There was no necessity for extending it beyond such cases, and it should not be so extended, unless upon principle it is fairly warranted. Where a party is served by a copy left at his residence, two or three matters are material to be considered. One is, did he really owe the debt for which the judgment was [313] rendered? In the next place, did he afterward, and before trial, have actual knowledge of the leaving of such copy ? If directed to him by his proper name, and the service is in due form, in the absence of fraud, or such circumstances as would entitle him to equitable relief, we entertain no doubt but that the judgment is as conclusive as though he was personally served, and this too whether knowledge of such service was or was not brought home to him before trial. And, though the return should be informal, if he actually owes the debt, that is, if he has no defense, he should not, in a court of law or equity, be heard to question the validity of the judgment collaterally. But, if appellees’ doctrine is correct in this case, then this judgment is conclusive against plaintiff, though she did not owe a cent of the demand for vyhich the action was brought. For, if this method of service is as conclusive as though personally made, and if the party was bound to appear and present, by plea or otherwise, the misnomer, or suffer the consequences of such failure, then all inquiry into the correctness of the original demand is effectually excluded. And this thought, it seems to us, tends to show the impolicy and unreasonableness of the rule. But, that the doctrine for which appellees contend is applicable alone to cases of personal service, and where the debt was really owing, we think is fairly inferable from the authorities cited and others coming under our observation. Thus, in the case much relied oh, Trull v. Howland (10 Cush., 109), there was a mistake in the Christian name; there was actual service, and the debt sued for was the proper' debt of the person upon whom the service was made, and it was held, most properly, that the objection was waived by failing to plead the misnomer in abatement. In Smith v. Bowker (1 Mass., 76), the judgment was rendered for a debt justly due from the defendant, and he was described in the attachment and [314] summons as Aaron Smith of Orange, when he was really an inhabitant of Athol, in the county of Worcester. Here, there was a mistake in the place of residence in describing the person; but, while the case is not very clear in its statement, we think it fairly inferable that there was a personal service. The return was, that the officer “ left with him ” a summons for his appearance. Thatcher, J., says, that “the writ was.served on him.” Sedgwick, J., says, the “ process had been legally served; that it was' duly served on him;” and Strong, J., says, “it is confessed that the plaintiff is the person who was served with the summons.” At all events, he owed the debt for which plaintiff had judgment. Tilden v. Johnson 6 Cush., 354, involved no question of misnomer, but the court simply decides what was a good service against a non-resident defendant, and how far the officer’s return is to be regarded conclusive, as to the fact that defendant had, within the commonwealth, a “ last and usual place of abode.” Johnston v. Robins, 3 Johns., 440, holds, in a case where the defendant was properly named, that service of a copy of the declaration, with notice of the rule to plead, on the defendant, by leaving it at the dwelling-house of the party, was to be considered as personal for all purposes, except to bring the party into contempt. And this rule, we are disposed to concede, would be equally applicable under our practice in the case of an original notice, where the defendant is properly named. Wheeler v. Lampman, 14 Johns., 481, was when the constable failed to return the time of service, and upon certiorari it was held that it did not comply with the statute. In Barnes v. Harris, 4 Comst., 375, the controversy related rather to the nature of the process, than to its service and the defendant was properly named. JBut see in that case the very well reasoned dissenting opinion of