Delinger's Administrator v. Higgins

26 Mo. 180 | Mo. | 1858

Richardson, Judge,

delivered the opinion of the court.

The writ in this case was issued August 23, 1856, to the sheriff of Cole county, and was returnable to the next term, in February. At the adjourned February term, in May, 1857, leave was given to the defendant to answer thirty days before the next term, and on the 28th of July following an answer was filed. The answer purports to state matter only in abatement. It avers that at the commencement of the suit the plaintiff was a resident of Cole county and the defendant a resident of Pettis county, and that he was not found in Cole county at the commencement of the suit nor since then. The issue as to the jurisdiction of the court, which it was assumed was presented by the answer, was tried by a jury, and the verdict was for the plaintiff. Afterwards, at the same term, the defendant filed a motion to quash the sheriff’s return, which motion was sustained, and the plaintiff refusing to ask for an alias summons, the suit was dismissed. If neither of the parties had resided in Cole county — no matter what the officer’s return had been, provided it has been in proper form — the objection to the jurisdiction could only have been presented by an answer; but the defendant conceded that the plaintiff resided in Cole county, and, no matter where he resided, the jurisdiction of the court attached, pi’ovided the summons was properly served and it appeared by the return that the defendant was found in Cole county. The question then was resolved into the sufficiency of the return. If the return was defective, it should have been quashed on motion before there was a general appearance, and then the plaintiff could have taken an alias or dismissed his stdt. But if the return showed that the defendant was found, and was otherwise regular on its face, it could not be contradicted in this suit by answer or otherwise. (Page v. Hallowell, 24 Mo. 590.)

The answer presented immaterial issues. That the defendant resided in Pettis made no difference, if he was found in Cole; and, if the return stated that he was so found, the fact "*could not be disputed, and the only remedy was by an action against the sheriff for a false return.

It is too late to object to the return on a summons after a defendant has appeared and obtained time to answer, and afterwards answers either to the merits or in abatement. The objection, in proper form, to the sufficiency of a return, should be the first step taken by the defendant in a cause.

The other judges concurring, the judgment will be reversed and the cause remanded, with leave to the defendant to answer to the merits.