Brian v. Jeffrey

Mahan, P. J. The only question in this case presented for our decision is, whether a person other than the sheriff can serve notice of a motion to revive a [99] dormant judgment, under sections 428 and 440 of the Code. If we answer in the affirmative, the trial court erred and its judgment must be reversed. Counsel for the defendant in error contend that the notice must be served by the sheriff, to give the court jurisdiction to make the order of revivor. The argument is, that section 428 says : “ Notice of the application for such order shall be served in the same manner . . . as a summons;” that this section provides hoiv the notice shall be served ; and that section 59 of the Code provides that a summons shall be directed to the sheriff, and shall command him to notify the defendants, etc., while sections 61, 63, 64, 68, 68a, 685, 68c, 68c?, 69, 70 and 71 designate how, and upon whom, it may be served. A notice to revive is addressed to the defendants. An application for an order to revive is a motion, expressly provided for by section 582 of the Code. Section 534 prescribes what the notice of the motion shall contain, and section 535 provides by whom such notice shall be served. It says : “ Notices of motions, mentioned in this article, may be served by a sheriff, coroner or constable, the party or his attorney, or- by any other person, and the return of any such officer or affidavit of any such person shall be proof of service,” etc. Section 536 further provides that “ the service of a notice shall be made as is required by law for the service of a summons.” The application for an order reviving a judgment is a motion by a party to a suit, and not a new or original proceeding. The notice was in conformity with the provisions of section 534; service by a constable was a good service under section 535 ; the District Court had jurisdiction to make the order of revivor, and it was error to set it aside-The judgment is reversed.