Thompson v. Moore

| Ky. Ct. App. | Jan 8, 1891

JUDGE PRYOR

delivf.red the opinion of the court.

This was an action to enforce a lien upon land, resulting in a judgment by default that is now sought to be set aside for the want of service of process on the defendants. - On the motion to set aside the judgment the officer was allowed to amend his return as to the mode of service on the infant defendants, and it appearing by the amended return that he had delivered a copy to each one of the infants (they being-over fourteen years of age) in time for j udgment, that error in the proceeding was cured.

As to the appellant, Thompson, it appears that the sheriff had, by an indorsement on the summons, authorized a special bailiff to execute it as provided by subsection 2, section 47, Carroll’s Civil Code. That summons had been returned by the special bailiff not found as to Sherman Thompson, when an alias summons issued, and was served by the same bailiff without any indorsement by the sheriff giving this special deputy the power to execute it. The power to serve had been exhausted by the deputy after his return on the original summons not found as to Sherman Thompson, and a new power had to be given authorizing him to serve the alias summons. This was not done, and yet the sheriff was permitted to amend what is called his return by making the indorsement on the alias summons after the judgment had been rendered. The sheriff was not, in fact, amending his return, but was attempting, after judgment, to confer a power in order that it might relate back, so as to make an illegal service effectual. If the special deputy, acting under a parol authority, had no right to serve the summons, no subsequent authority by the sheriff could make such a service valid. The Code, in this regard, must be followed, and no parol authority ought to be held sufficient to authorize a special bailiff to execute the summons.

It is insisted by counsel for the appellee that the record shows the loss of an alias summons, on which the indorsement was made and summons had, and that the indorsement on the alias is but a copy of that lost summons that was, in fact, served. The record shows that this is not the true state of case, as is apparent from the certificate of the clerk on the return of the certiorari.

The judgment is reversed, and remanded with directions to set aside the judgment, and for proceedings consistent with this opinion. The parties must now be regarded as before the court, without an additional summons.