95 P. 814 | Or. | 1908
Opinion by
There are two appeals to be considered—one from an action at law upon the motion of plaintiff therein granting leave to the sheriff to amend his return to conform to the alleged facts by changing the name of “Alfred Abraham” to “Albert Abraham,” and the other from the decree dismissing the complaint in the equity suit. But the consideration of the latter will be sufficient to determine the whole controversy.
“I could not, I would not be positive about that. I cannot say positively out of the thousands of papers I have served, that I have always actually put the papers into the hands of the defendant. I know sometimes I have not done that. I have had to throw them into the house or leave them in spite of the protests, but I remember having met you there under the circumstances under*13 which this testimony has stated. As to the balance of it, it is a perfect blank to me.”
But he produces a sheriff’s memorandum book kept by himself while he was a deputy, and which contains an entry made by him of the. title of the action of Miller v. Abraham, the date of the receipt of the process as May 9, 1902, the service thereof on the same date upon Alfred Abraham. Kelly testifies that when he left a copy of a summons and complaint with a defendant, it was his practice immediately to make a memorandum to that effect in this note book, which was kept in the sheriff’s office for that purpose, and when the book was filled it was filed away for safe-keeping; that he made a memorandum of service when the service had been made and not before, and that he could remember of but one instance, which occurred in his early experience as an officer, that when he started out to serve a man, met him, had a conversation with him, and then did not serve him; that on that occasion he was instructed that he should never, under any circumstances, bring the papers back. If he failed to make service, he understood that he rendered himself liable in damages. He testifies, however, that it was the plaintiff herein, and not some other person named. Alfred Abraham, whom he met on the occasion when he went to serve the papers, and that he would not have made the memorandum if he had not made the service, but that he cannot testify that such was the fact except from the contents thereof. How he came to write “Alfred” instead of “Albert” he is unable to explain, except that it was a clerical error. Now it is admitted by plaintiff that there is some evidence that some person designated as “Alfred Abraham” was served, but he contends that there is no evidence that “Albert Abraham” was served. But we think it cannot be doubted that the evidence establishes the identity of the person of Albert Abraham, the defendant in the action, with “Alfred
As to the alleged settlement plaintiff has als.o failed to make out a clear case. While he testifies that an agreement to that end was made, he is flatly contradicted by Miller and by Spencer, who was the former’s attorney in the action at law, and there being no corroborating evidence, plaintiff must necessarily fail.
It follows that the decree in the one case and the judgment in the other should be affirmed. Affirmed.