Horton v. Kansas City, Fort Scott & Gulf Railroad, 26 Mo. App. 349

26 Mo. App. 349 | Mo. Ct. App. | 1887

Philips, P. J.

This action arose in a justice’s court. The plaintiff had judgment, from which the defendant took an appeal, in vacation, within ten days after the rendition of judgment. In such case it is made the duty of the appellant to serve notice on the appellee of the taking of such appeal. And if such notice be not given, within ten days next before the commencement-of the second term of the appellate court, the judgment of the justice shall be affirmed by the appellate court on the motion of the appellee. At such second term the appellee made such motion. In opposition thereto the appellant offered, and read in evidence, a notice in due form, dated August 13, 1885, on which was the following indorsement:

“State oeMissouri, } c “ County of Barton, f

“ Served this notice in the county of Barton, state of Missouri, by delivering to the within named R. C. Horton an exact and true copy of this notice, on the fifteenth day of August, 1885.

“S. P. FiNLey, Sheriff.

“Per A. E. Wardiok, Deputy Sheriff.”

Against the objection of appellant the plaintiff testified, ‘ ‘ that the said notice of appeal ivas never served on him ; but that a notice, similar in form, but in a case of IL E. Best against defendant, was served on him; hut that no notice of appeal whatever ivas served on him in this case, nor did he ever see any notice of appeal in this case.”

On this state of the proofs the court sustained the motion, and rendered judgment of affirmance accordingly. Defendant has appealed to this court. The single question presented for determination is, whether or not this return of the sheriff is conclusive evidence of the fact of such service, so as to preclude the appellee, on such motion, from showing the truth 1 It is the well settled law of this state, since the decision in Hallowell v. Page (24 Mo. 590), that a sheriff’s return on process, regular on its face, is conclusive upon the parties to the suit. Its truth can be controverted only in a direct action against the sheriff for a false return. The contention of appellant is, that the same force and effect ought to be given to the return made by the sheriff on the notice in this case. By sections 3055, 3056, 3057, Revised Statutes, it is made the duty of the appellant to give the required notice to the appellee. Section 3055 provides that, “the notice may be served in like manner as an original summons, or by delivering a copy oí the same to the appellee, by any person competent to be sworn as a witness ; and when the appellee does not reside in the county, and has no agent in the suit therein, within the knowledge of the justice, the service may be by leaving a copy of such notice with the justice.” It is to be observed that all the decisions of the supreme court, to which we are referred by appellant, pertain to the officer’s return made to writs of summons issued out of, and made returnable to, the court. So it is said by Cowen et al. in note 382, p. 371, 2 Phillips on Evid.: “The rule above noticed, concluding the parties, applies to process by which the defendant is brought into court.”

In our modern practice the terms, “writ of summons” and “process,” are used interchangeably. Process is used as a generic term for writs of the class called judicial. 331 mill ’ s Law Dictionary.

The writ of summons is the instrument running in the name of the state, issuing out of the court having jurisdiction of the action, directed to the ministerial officer, commanding him to execute the same, and certify to the court how he executes it. Burrill’s Law Dictionary.

The return is the answer made by the officer, indorsed on the writ, certifying to the court the fact and manner of service. Burrill’s/Law Diet. So our statute { sects. 4037, 4038) provides that such writs shall issue' out of the court, and shall run in the name of the state, and how they shall be attested.

The notice in question can not, therefore, in legal strictness, be regarded as process in any sense. It issued neither out of the court, nor was it directed to the sheriff. It made no command of him. On the contrary, the statute requires the appellant to give the notice. He makes, signs, and sends out the notice, and must see that it is served. The court has nothing to do-with this matter.

Unless, therefore, it can be shown that, by some-statute, the duty was devolved on the sheriff to serve the notice, and make return, and declaring what force and effect such return should have, we do not see how the contention of appellant can be upheld.

It cannot be maintained that section 3055 imposes-this duty upon the sheriff, so that he and his bondsmen would be liable for any neglect or omission touching his-action thereon. “The notice may be served in like manner as an original writ of summons, or by delivering-a copy of the same to the appellee, by any person competent to be sworn as a witness.” The strict grammatical construction of this sentence would seem to authorize the service by any competent witness in either of the-modes designated. From the punctuations, the “person competent to be sworn” follows the enumeration of both modes of service, saying, in effect, that such person may serve in either of the modes. But the criticism to which this view is subject is, that if it. was designed by the framer of the act to authorize “any person” to make the service in either of the methods" pointed out, what was the necessity or object in saying,. “ or by delivering a copy of the same to the appellee,”' as this latter mode of service was already included, within the first specification? Rev. Stat., sect. 2861. Its repetition in the second alternative mode would have been meaningless, and the merest surplusage. Mere-grammatical exactness, like the matter of punctuation, must often yield to the more obvious mind of the draftsman, and the legal acceptation of the terms employed:. In this view the service, when made by the “any person,” must be by delivering a copy of the notice to the-appellee; and the other “manner,” as in case of the original summons, must have reference to a service made by an officer.

.Conceding, therefore, to appellant that the notice' ■could be served by an officer, two questions arise : First, Iby what officer, and second, what is the legal effect, as matter of evidence, of the return he makes ? The statute says: “In like manner as an original writ of summons.” 'The officer designated by law for service of the summons, issued, in this action, from a justice’s court, is the constable. Rev. Stat, sect. 2858. The sheriff has nothing to do with serving such process. But, conceding this to be a generic term, we are quite certain that his return -can not be held to be conclusive. As already stated, “the notice is not original process ; neither is it mesne process, any more than a notice of suing out a writ of error to the supreme court. The term, mesne process, has no application to such a notice. Bouv. Die. Title “Process.” The mere “manner” of service is limited to how service may be made, and does not <change the character of the instrument served, so as to impart to it the quality of a writ of summons. Nor does the statute say that it, or the return, shall have the same or like effect as in case of writ of summons. It pertains only to the mode, the way in which the notice may be given. Had it been the mind of the legislature to impart to an officer’s return to these mere notices, the quality and dignity of a return to a writ issuing out of and under the sanction of a court, why did the same legislature, in the revision of 1879, as in section 2458, Revised Statutes, concerning service of notice ■of demand in unlawful detainer, declare that: “When the demand shall be made by an officer authorized to serve judicial process, his return shall be prima facie •evidence of the facts therein stated.”

It would, therefore, seem that, but for this express ■statutory provision the return would not be even prima facie evidence of the facts recited. It is not tenable to say that this special provision was designed as a limitation or restriction on the general evidential effect of the ■officer’s return. Had such been in the mind of the framer of the law, he would have employed some apt language indicative thereof, such as, the return shall he only prima facie evidence. The same section makes the sworn return of service hv any other person also prima facie evidence; clearly indicating that the provision was designed to confer a new and enlarged effect upon such returns. The conclusion reached by us is well sustained in other jurisdictions. Bank v. Buel, 17 How. Pr. 499; Hathaway v. Goodrich, 5 Vt. 65; Davis v. Clements, 1 N. H. 390.

II. It is next insisted by appellant that the statement filed before the justice is defective in form and substance. We will not consider this objection. This question has been expressly determined against the contention of appellant in Cooksey v. Railroad (17 Mo. App. 132).

The only question for review, where the judgment of the justice is affirmed by the circuit court, as in this case, is, did the circuit court err in sustaining the motion for affirmance ? As it did not err, it follows that the judgment must be affirmed. It is so ordered.

All concur.