Farris v. Ingraham, Kennedy & Day

Day, J. We do not understand appellant to claim that the notice was not in fact served in the manner stated in the return, nor that in this action the return may be impeached by showing its falsity. From appellant’s argument we extract the following: “ "We do not deem it necessary to inquire whether or not the judgment in question would have been upheld on,appeal, where no direct proof of the insufficiency of the service could have been given; .nor whether, if the sheriff’s return had stated every fact neces. sary to constitute a perfect service, we could impeach the same by direct evidence that it is false. Our claim is that [234] tbe return, upon which, -the judgment complained of was rendered, omits to state that service of the notice in said action was made by leaving the same at the house of the defendant th&rei/n, or at any house which was the usual place of residence of said defendant; and that every inference in favor of the sufficiency of such service is negatived by the positive averment in the petition that no service whatever was made upon plaintiff, and by the entire absence of any allegation, either in answer or affidavits, submitted on the part of the defendants, that such service was in fact made at the house of plaintiff, or at any house:” The question, therefore, submitted for our consideration is, as we conceive, not whether it is competent to show the return to be false, but whether, conceding it to be true, it is sufficient. The return states that the notice was served on James Farris “by leaving a copy of the same at his usual place of residence, in the village of Jessup, Buchanan county, Iowa, with Matthew Farris, a member of defendant’s family, over fourteen years of age, the defendant not being found.” The specific objection urged is, that the return does not state that the notice was left at the house of defendant, or at any house which was his uusal place of residence. Rev., § 2817. This identical question was considered in the case of Neally v. Redman, 5 Iowa, 387, under the provisions of section 1723 of the Code, substantially in this regard the same as those of the Revision, and the return was held to be a. substantial compliance with the law. See, also, Davis v. Burt et al., 7 Iowa, 56. The court did not err in dissolving the injunction. Affirmed.