Moffitt v. McGrath, 36 P. 578

Moffitt v. McGrath

36 P. 578 | Or. | 1894

Opinion by

Mr. Justice Bean.

This action was originally commenced in the justice’s court for Moro Precinct, Sherman County, by the plain*479tiff against the defendant to recover the possession of a two-year-old filly, and for damages. Judgment being rendered in favor of the defendant, plaintiff appealed, or attempted to appeal, to the circuit court. A motion to dismiss the appeal for want of notice thereof being overruled, a trial was had, resulting in a judgment for plaintiff, from which defendant appeals, alleging as error the overruling of her said motion to dismiss the appeal. It is insisted that this motion should have been sustained upon the ground that the record does not disclose any proof of service of the notice of appeal upon the defendant. The only evidence of such service contained in the record is the following acknowledgment indorsed upon the notice of appeal: “Due and legal service of theforegoing notice of appeal is hereby admitted by me at Moro, Oregon, this twentieth day of October, eighteen hundred and ninety-three,” purporting to be signed by Mrs. Mary McGath, attorney for defendant Mrs. Mary McGrath. ■This acknowledgment, it is objected, is insufficient as proof of the service upon the defendant, because, if it purports to be an admission of service by her attorney, it nowhere appears in the record that Mrs. Mary McGath was such attorney; or, if it purports to be an admission of service by the defendant herself, it is unaccompanied with proof of the genuineness of her signature. The similarity between the name Mrs. Mary McGath and that of the defendant renders it probable that the indorsement on the notice of appeal purports to be an admission of service by the defendant signed to a blank indorsement prepared in contemplation of an admission by her attorney, and we shall so consider it.

By section 527 of the Code, proof of the service of a notice of appeal shall be the same as the proof of service of a summons, and therefore it may be by the written admission of the party to be served, (section 61); hut an *480indorsement upon a process of the written acknowledgment of service purporting to be signed by a party is not sufficient evidence of such admission unless it is accompanied with proof of the genuineness of the signature of the party, for the court cannot take judicial knowledge of the signature of a party who has not appeared in the cause, and therefore, without such proof, cannot know whether the signature is that of the party it purports to be or not. “ It is well settled,” says Mr. Justice Field, “that courts will take judicial notice of the signatures of their officers, as such; but there is no rule which extends such notice to the signatures of parties to a cause. When, therefore, the proof of service of process consists of the written admissions of defendants, such admissions, to be available in the action, should be accompanied with some« evidence of the genuineness of the signatures of the parties. In the absence of such evidence, the court can not notice them”: Alderson v. Bell, 9 Cal. 321. To the same effect are Johnson v. Delbridge, 35 Mich. 436; Litchfield v. Burwell, 5 Howard Pr. Rep. 346; Bozeman v. Brower, 6 How. (Miss.), 43; Gatewood v. Rucker, 1 T. B. Mon. 21; Ex parte Gibson, 10 Ark. 572; Norwood & Chambers v. Riddle, 9 Porter (Ala.), 425. It follows that the writing purporting to be an admission of service by the defendant, without proof of its authenticity, did not authorize the court to assume jurisdiction.

But it is contended that inasmuch as the court overruled' the motion to dismiss, we must assume that satisfactory proof was made as to the genuineness of the signature to the pretended admission of service. This is a direct proceeding by appeal to review the action of the court below in overruling the motion to dismiss for want ■ of service, and must be determined in this court upon the record, which shows that the only proof of service was the said pretended admission thereof, and there is *481nothing in the record to show that any proof was made as to the genuineness of her signature, or any finding of the court upon that question. The motion to dismiss was simply overruled, without any reasons being stated in the record therefor. Such being the case, and it affirmatively appearing that upon this record the action of the court below in overruling the motion was error, it follows that the judgment must be reversed and the cause remanded with directions to dismiss the appeal.

Reversed.