Howell v. Shepard

Cooley, J. Tliis litigation originated in justice’s court, upon a small claim which became due July 25, 1873. Summons was taken out July 24, 1879, but was returned not found. Successive writs were then taken out, until September 13, 1879, when personal service was obtained, and the defendant appeared and pleaded to the action. The plea was the general issue, with notice that defendant would rely upon the statute of limitations. This notice presents the principal question in the case. The justice gave judgment for the plaintiff,' and on certiorari the circuit court affirmed it. The question divides itself into two : First, whether the suit is to be deemed commenced at the date of the first summons; and second, whether it was kept alive by the successive writs afterwards. The mere filling out of a summons, which is then left in the justice’s office until the return-day, or which is taken by the plaintiff and retained in his own custody, is not the commencement of suit. The writ must not only be made out but it must be issued with the intent that, if practicable, it shall be served. Hancock v. Ritchie 11 Ind. 48. It is not issued if it is delivered to the plaintiff who retains it in his own hands. But in the absence of any showing to the contrary the date of the writ is prima facie evidence of the time when it was actually issued. Gardner v. Webber 17 Pick. 407, 412; Bunker v. Shed 8 Met. 150; Federhen v. [474] Smith 3 Allen 119; Ross v. Luther 4 Cow. 158. The burden of proof is upon the defendant to show that the writ was not actually issued on the day it bears date. Day v. Lamb 7 Vt. 426. This showing was not made. The question whether successive writs of summons could keep the suit alive, is made upon the statute. The statute provides for an alias, and further that if the alias is returned not personally served, “ the plaintiff may, in further continuance of his suit, have an attachment against the defendant.” Comp. L. § 5263. On this attachment property may be taken. But this is an alternative remedy, and the plaintiff, instead of resorting to it, may pursue the course which lie took here. There is still a further error assigned; namely, that the justice admitted in evidence a deposition which was taken on insufficient notice. The deposition does not appear in the return, and may, for anything that does appear, have been of no moment in the case. If the defendant considered himself wronged by its reception, he should have appealed. The remedy by certiorari is not one to be encouraged when the alleged errors are such as might have been obviated on a tidal de novo in the circuit, and nothing will be taken by intendment in favor of errors assigned upon it. The judgment is affirmed with costs. Campbell and Marston, JJ. concurred.