1 Ind. L. Rep. 451 | Ind. | 1881
— On the 10th day of September, 1879, the clerk of Montgomery county issued against the appellees a summons, perfect in form and substance, except that it lacked the seal of the court from which it issued. There was no appearance by the appellees to the action in which the summons issued, and judgment was entered against them upon default. On the 18th day of November, 1879, the appellant, by her prosecuting attorney, moved, upon proper notice, for an order directing the clerk to attach the seal now for then. The motion is -supported by the affidavit of the clerk showing the issuing of the writ, and by that of the deputy sheriff showing due service. Answers were filed by the appellees to the motion or complaint of the appellant, but these were struck out on motion of appellant. Finally, an order was
The first question, and really the controlling one, presented by this appeal, is this: Has a circuit court the power to make an order directing the clerk to affix the seal of the court., now for then, to a summons issued previous to, and returnable at, a former term, after judgment has been entered and after such term has finally closed ?
- It is undoubtedly true, as appellees insist, that at common law a writ issuing from a court must, in order to be entitled to be considered as regular and authentic, be attested by the seal of the court from which it .issued. Williams v. Vanmetre, 19 Ill. 293; The State v. Flemming, 66 Me. 142; Wheaton v. Thompson, 20 Minn. 196; Reeder v. Murray, 3 Ark. 450. The case of The Insurance Co. v. Hallock, 6 Wal. 556, does decide that an order of sale issued by a court of this State was void because not attested by the seal bf the court. It has also been held by this court that, where there is no statute to the contrary, a writ or record must be attested by the seal of the court from which it comes. Jones v. Frost, 42 Ind. 543 ; Hinton v. Brown, 1 Blackf. 429 ; Sanford v. Sinton, 34 Ind. 539. The older cases did hold that a. writ lacking the seal of the court was absolutely void, but there is much conflict upon this point among the modern cases, many of them holding that such a writ is not void, but merely voidable. Our court long since held that such a writ was not void.
■ Tt is true, as argued by appellees, that a summons, so clearly defective as to be insufficient to confer jurisdiction, can not, after judgment, be so amended as to give jurisdiction. If a summons without a seal be conceded to be void, then there can be no amendment, for it is axiomatic that a void thing can not be amended.
.- The liberal provisions of our statute, respecting the summons, would take such writs from under the old common-
The appellees, by their assignment of cross errors and by their brief, ask us to consider and reverse the ruling of the »court striking out their answer and cross complaint. The pleading of appellees alleges that the defendants were called and defaulted on the 25th day of September, 1879 ; that “no valid summons” was served on the appellees ; that judgment
It is true, that the pleading avers that “no summons was ever issued by the clerk of the court under the seal of the courtbut, as this is precisely what the appellant’s motion admits, there was zio issue presented. In other parts of the pleading it is alleged that “zio valid summozis was issued or served.” This is azi izisufficient allegation, because it is a mere ziegative pregnant. The negation implies the sendeeof a writ invalid only because it lacked a seal. Pomeroy Remedies, sec. 618.
The couz’t erred in striking appellant’s motion from the docket, but did not err in striking out the appellees’ answers.
Judgmexit x’eversed, at costs of the appellees.