1 Bradf. 19 | Iowa | 1839
There are two principal questions to be considered in the disposition of this case; 1st, whether the service of the summons was so defective, that to have denied a motion in arrest of judgment would have been erroneous -. 2d, whether, after having once sustained such a motion, and arrested the judgment, the District Court, at the same Term, can re-consider the matter, reverse the former order, and direct final judgment to be entered. If the course pursued by the District Court, in both these particulars, be correct,, the judgment below must be affirmed. The authorities cited by Counsel do not bear directly upon either of these points, and our limited means have not supplied us with others more applicable. We shall, therefore, endeavour to apply the general princi - pies of law and reason to the examination before us.
The sufficiency of the service upon two of the defendants, seems to be admitted in the assignment of errors. But it is contended, that the service upon the defendant Delashmutt was incurably defective. The Statute declares, that a summons shall be served by delivering a copy thereof to the defendant, if found, &c. and it is contended that no other mode of service will be sufficient.
The return of the Sheriff states, that the summons was served on this defendant by reading, he waiving the right of having a copy. This agreement of waiving the receipt of a copy, say the Counsel for the plaintiffs in error, was merely verbal, and such as the Courts do not recognize.
The rule, we think, is stated too broadly. It is true that Courts do not, generally, enforce the out-of-door agreements of parties, or their Counsel, which are not reduced to writing, but the case before us seems to belong to a different class. The Sheriff is an officer of the Court, and his returns, in writing, frequently furnish the sole basis for further judicial proceedings. If he makes a false return, he is liable to an action. Had the return on the summons, in the present case, been “served,” the requisition of the Statute would have been complied with, and the propriety of the proceedings unquestioned. Did he intend to make a false return, he would doubtless adopt the latter method.
It seems to us, therefore, that there is no impropriety in our receiving and acting upon the return of the Sheriff in this case, as the truth. The provision of the Statute rendering it necessary to furnish the defendant with a copy of the summons, was doubtless intended for hrs own benefit. When the Court is satisfied, by legitimate evidence, that he has waived this right, will it allow him to lie still during all the preliminary stages of the cause, and then after-wards come in to arrest the judgment, and overturn all the proceedings? To establish such a rule would, we think, be countenancing bad faith, and subverting the ends of justice. We are, therefore, of the opinion that judgment in the Court below ought not to have been arrested for defective service.
With regard to the second question above proposed, it appears from the re - cord, that judgment in the Court below was at first arrested; and that subsequently, that order was reversed and judgment entered. It does not appear, as the counsel for the plaintiffs in error seem to suppose, that after the arrest of judgment, a second default was entered, upon which judgment was finally ren-
As to the objection that time should have been given to the defendants to come in and plead after the arrest of judgment it is answered by the fact that we cannot regard the judgment as ever having been arrested, the order therefor having been reversed in the court below. We are therefore of the opinion that the judgment in this case should be affirmed.
Judgment affirmed accordingly.
