15 Minn. 288 | Minn. | 1870
By the Court This is an action against the maker of a promissory note payable to A. March or hearer.
By the return of the sheriff on the summons, it appears that the snmmons and complaint were served on the defendant personally, on the 18th day of May 1869. Judgment was entered, by default, on the 8th day of June 1869. After-wards, on the same day, defendant served an answer by copy, on plaintiff’s attorney, who returned it the same day. On the 14th day of June 1869, upon defendant’s application on the pleadings and affidavits tending to show that the payee and not plaintiff, was the owner of the note, and that the summons was in fact served on the 19th of May, and that affiant and his attorneys acted in good faith on that belief, an order was made to show cause, why the judgment should not be opened, and said answer-served, and staying execution in the meanwhile.
Cause being shown, upon counter affidavits as to the time of service, and plaintiff’s property in the note, an order was made denying the application, and vacating the order staying proceedings, from which defendant appeals to this court.
As to the time of service, there is nothing in this case
It was his duty to make the return, Gen. Stat. Ch. 66, Sec. 47, and the statute makes such return proof of service. Gen. Stat. ch. 66, sec. 53.
Where in an action against a town, the writ was returned as duly served, a plea in abatement, which averred that it was not, and in this, among other things, that it was not served 30 days before the sitting of the court to which it was returnable, as required by law in suits against towns, was held bad on demurrer, because the defendant was estopped to deny the service, and the court would ex officio, take notice of the' return. Slayton vs. Chester, 4 Mass. 478. This court has held that it is a well established general rule, that the return of a sheriff, so far as it is evidence of formal proceedings is conclusive upon parties and privies, and prima facie upon strangers, and that it is not liable to impeachment, except in direct proceedings in which the officer is a party. Tullis vs. Brawley, 3 Minn. 277, 283.
“It has- often been decided, that a legal and sufficient return by an officer upon a precept which he had authority to serve, cannot be controverted except in a suit against himself or his superior. ” Bean vs. Parker et al, 17 Minn., 591-5.
The present case falls within no known exception to the rule.
If it be said that a summons is not a writ, prpcept, or process in the strict sense, the service of a summons is nevertheless a formal proceeding, of which the return is evidence.
And it is entirely within the reason of the rule, the ground of which is that it is the officer’s duty to make the return and that it is to be presumed that sworn officers will correctly
Taking the answer not to have been served in time, the application was addressed to the discretion of the court, and the order denying it is not reviewable unless it was a palpable abuse of such discretion, (11 Minn., 232.)
If the appellant acted in good faith as to the time of serving the answer, and the facts therein set up, would if true, constitute a meritorious defence to the matters alleged in the complaint, it would seem just that he should have an opportunity to prove them.
But this is not that case. The complaint after stating the making and delivery of the note alleges, “that before the maturity of the said note, the said Aaron March, for value received, sold, transferred, endorsed and delivered it to the plaintiff; that the plaintiff is now the owner and holder of said note ; that the same has not been paid, nor any part thereof, but that the defendant is now justly indebted to the plaintiff thereon in the sum of $500, with interest thereon, at the rate of six per cent, per annum, from Nov. 4th 1868.”
The answer denies all that part of said complaint after and including the words therein, viz : “that before the maturity of said note, the said Aaron March, for value received, sold” &c., and “shows that the plaintiff, at the time of the commencement of this action was not, and is not now the owner and holder of said note. ”
The allegation in the complaint as to the sale, endorsement and delivery of the note to the plaintiff, sufficiently alleges title in him. Bank of Louisville vs. Edwards, 11 Howard Pr. R. 216. Connecticut Bkvs. Smith, 9 Abb. Pr. Rep. 168. 24ih. N. Y. Rep. 247.
The subsequent averment, that he was the owner and holder was a conclusion of law arising from the preceding
And see opinion of Denio, J. in Wall vs. Buffalo Water Works Co., 18 N. Y. 119. From the opinion delivered by the chief judge, it is apparent, that under such statute provisioned as ours, the majority of the court would have concluded in holding the answer insufficient.
The fact of transfer not being specifically controverted, is admitted. The time of transfer is immaterial, for the defendant claims to have neither defence, nor offset against March.
The averment that plaintiff is not the owner, is but a repetition in another form of words of the previous denial of the conclusion of law that he is, and as the facts upon which that conclusion rests are not put in issue, it raises no issue, and is immaterial and irrelevant. (13 Minn. 165.)
It is not material which way, on the affidavits, the preponderance of proof may be, as to ownership, as no issue upon it is made by the answer. And as the answer fails to set up a defence to the allegations of the complaint, the court below was right in refusing to open the judgment.
The order appealed from is therefore affirmed.
