Town of Woodville v. Town of Harrison

Lyon, J. If the action was not commenced on or before February 12, 1887, it was barred by the limitation of sec. 1514, E. S. It was not commenced until the summons was delivered to the sheriff for service. Sec. 4240. The docket [362] of the justice does not show,'and the statute does not require that it should show, when the summons was delivered to the sheriff. Neither does it require the sheriff to certifj^ when he received it, and he did not so certify. Had he done so his certificate would, at most, be presumptive evidence only of the fact thus certified. Sec. 4241. Hence there is no record evidence of the time the summons was delivered to the sheriff for service, and the statute requires none. Hence the fact may properly be proved by parol. Doubtless the rule would be the same had the sheriff certified the dh-te of service, or had such date been entered in the docket of the justice. If a summons returnable February 22d was delivered to the sheriff on the 11th of that month, and the return day was subsequently altered to the 23d, the alteration made another and entirely different process of it, which, in contemplation of law, the sheriff did not and could not receive until the alteration was made, although he may have had in his possession from the 11th the paper which by the alteration became the summons in the action. If so altered, the fact and time of such alteration may in like manner and for the s*ame reasons be proved by parol; for it is only one method of proving when he received the summons for service. The summons is in the record, and it shows unmistakably, on its face, that the return day originally written therein has been altered. The cases which hold that the authorized entries in the docket of the justice import absolute verity have no application here. Had testimony been offered to show directly that the summons was not issued on the 10th, or was not made returnable on the 23d, or, perhaps, that it was not served on the 16th, those cases might be applicable; but the rejected testimony was not offered for any of these purposes, or to dispute any authorized record, but only to [363] prove a fact resting in parol. It was therefore error to reject such testimony, and the error is vital in the case. Hence the circuit court properly reversed the judgment of the justice. By the Court — Judgment affirmed.