Stediford v. Ferris

OPINION of the Court, Kirkpatrick C. J. In this case the constable returned the summons served, but when or how he does not say, [121] wliereas the statute requires, that he shall, upon his oath of office, endorse Upon the process the time and manner executed the same, and sign his name thereto; this particularity is necessary, because the justice is to judge of the legality of the service, and not the constable, and because too the manner of the service must appear on record, in order to support the judgment in case of error brought. It has been holden indeed, that the appearance of the defendant cures defects of this kind, because the whole object of the summons is to bring the party into court. But hero, there was no appearance, and therefore no proceeding could lawfully be had against him. (a) Besides, the record is in this wise. On the return of the summons, the plaintiff appeared and filed his plea, and the defendant by his friend Daniel Farrand,, confessed a judgment in favour of the plaintiif; whereupon I gave judgment in favour of the plaintiff’, for 80 dollars and 8 cents, with costs. Now this is wholly erroneous. Who is Daniel Farrand ? By what authority does he confess judgment ? Certainly none appears. (b) Therefore, Let the judgment be reversed. Footnotes [(a)] Budd vs. Marvin, post 248. Ayers vs. Swayze, 2 South. 813. Snedeker vs. Quick, 6 Hal. 181. Murat vs. Hutchinson, 1 Har. 46. English vs. Bonham, 2 Har. 352. Paterson R. R. vs. Ackerman, 4 Zab. 536. Steward vs. Sears, 7 Vr. 175. [(b)] Campbell vs. Cooper, 1 Hal. 142. Cade vs. Young, 3 Hal. 369. Young vs. Stout, 5 Hal. 302.