1. By tlie express words of the Code, section 3263, (Irwin’s,) it is a sufficient service of a writ in an ordinary action, for the sheriff to leave it at the residence of the defendant, and the sheriff’s return that he has so done authorizes the plaintiff to proceed just as effectually as if the service had been personal. We cannot, therefore, agree with the Judge in his charge that the defendant was not bound by the judgment, unless it affirmatively appeared that he had got actual notice of the suit. If this be the law, the provision of the Code, authorizing such a service, is not only nugatory, but it will act as a trap upon plaintiffs. We are not prepared to say that if a case should occur of such a service, and it should be made affirmatively to appear that the defendant did not, in fact, get any notice, and a judgment by default was taken, against him in a case where he had a good legal defense, a Court of equity would not grant him a new trial ■ but, in this case there was no such evidence. The complainant, it is true, does say this in his bill, but there was no effort to make any proof of want of notice at the trial. Since our evidence Act of 1866, the failure of the defendant to appear as a witness to make such proof, is an indication that it does not exist. Especially is it true that he has no right to complain, if he is presumed to have got the copy left by the sheriff at his residence, if he fail to appear as a witness to deny it.
2. But it is said that this charge can have done no harm, as the proof shows that the Robert Campbell, now complaining, was not the Robert Campbell sued, and that the judgment is none the better than would a judgment against John Doe be a good judgment against Richard Roe, even if Richard Roe were served. It is said that, even admitting the Robert Campbell filing this bill to have been duly, nay, personally served, yet, as the suit was against another Robert Campbell, the judgment is not binding. But there is no proof that the present complainant was not the very Robert Campbell intended to be sued. He was the person served, and a Robert *102Campbell was, in fact, a stockholder in the company. The plaintiff testifies that he did not know which one was the stockholder, and there is nothing in the evidence to show that it was his intent to sne the other Robert Campbell. There is, in fact, nothing in the evidence to show that the suit was not intended to be against the present complainant, except the evidence of Mr. Sibley that the other Robez't was the stockholder. But it seems to us that is a small mattei', unless it appeared that the plaintiff knew it. The present complainant was served. It was his duty to appear and defend the suit. Plere was a regular suit agaizzst Robert Campbell. A Robert Campbell was served with the writ, and he allowed judgment to go against him. It appears to us that it is trifling with the Court for Robert Campbell to come up and say: “This is not a good judgment, because I did not owe any such debt, and, therefore, I am not the person sued.” The John Smiths of the country, under such a rule, might always open a judgment, even after personal service. All any one of that numerous family would have to do would be to say: “ True, I was served, but I knew I did not owe any such debt as complained against me, and I paid no attention to the suit. It is a fact that I did not owe such a debt, and I insist upon it that the judgment does not bind me.” The proof in. this case is clear that the complainant was the party served. It is clear to us that the judgment estops him unless he can attack it for fraud. He had a right, even if duly served, to expect, under our law, that the plaintiff would prove his case. "We have, in this State, no judgment by default, in the proper sense of those words, except in an action on an open account, when there is personal service, and any man served with a writ has a right to expect the plaintiff will prove his case. The presumption of law is, that it was pz-oven before the jury finding the verdict that the defendant was a stockholder in this company. That is, too, a conclusive pz'esuznption, unless it be made affirmatively to appear that, by some unfair and illegal means, this verdict was obtained without such proof. If the verdict was pz’ocured by perjury, that would be a clear case; *103or, if the verdict was taken as a matter of form, as it is often done when the action is on a written agreement to pay money, and the defendant does not, on oath, deny the agreement, that might, if, in fact, the case required proof, be a legal fraud— an imposition — perhaps a thoughtless one, or one based on mistake, upon the jury. But, unless fraud or perjury be shown the presumption is conclusive that proof was made that the cause of action on the writ did, in fact, exist against the Eobert Campbell served.
3. We think there was no error in permitting the statements of Mr. Sibley. ILis language cannot fairly be said to be only the expression of his opinion. It is only a stronger way of stating what he had before said, to-wit: his recollection of the facts, from what he had seen and known of the company and its members.
Judgment reversed.
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