Wilson & Co. v. Call, 49 Iowa 463

Wilson & Co. v. Call

49 Iowa 463 | Iowa | 1878

Day, J.

1. service; return: certainty in name. I. It is claimed that the return fails to state the name of the person with whom copy was left; that the designation, Mrs Gall, does not comply with the statute with the degree of certainty required in this class of service. This position is not tenable. In support of our conclusion, though not entirely decisive of it, see Davis v. Burt, 7 Iowa, 56.

2. —:---:place of vice. II. It is urged that the return does not state the town where service was made. It is urged that what appears beneath the signature of the officer making service cannot be regarded as a part of the return. In this position we do not concur. The return shows that service was made in the village of Algona, Kossuth county. As to place of service it is sufficient.

III. It is insisted that the return does not state that the Mrs. Call therein referred to was a member of the defendant *465Asa C. Call’s family. The return states the notice was served on “Asa C. Call, by copy left at his usual place of residence, with Mrs. Call, she being a member of the family.” This can mean nothing further than that Mrs. Call was a member of the family which resided at the usual place of residence of the defendant, and this is equivalent to being a member of defendant’s family. This is the meaning which it conveys to the ordinary understanding.

3. ___:____: IV. It is objected that the return does not state that the defendant could not be found in the county. The statute does not require this statement. It authorizes service upon a member of the family of defendant “if not found in the county of his residence.” Section 2603.

<t.-: jtidg. erai attack, Y. The point mainly relied upon is that the return does not state the date on which the service was made. In Hakes v. Shupe, 27 Iowa, 465, it was held that the return was defective m that it did not state the time of service. But in that case the motion to set aside the default was made at the term at which the judgment was rendered, and only five days thereafter. The case was treated as presenting the validity of the judgment upon appeal, and not under collateral attack. The court say: “Upon appeal, as in this case, the jurisdiction of the court rendering the judgment appealed from, when denied, must be shown affirmatively; it cannot be presumed, but when collaterally attacked the jurisdiction will be presumed.” In this case the motion to set aside the default was not made till nearly four years after the judgment was rendered. The attack upon the judgment is not direct, as by appeal, but in the nature of a collateral attack. The court rendering the judgment passed upon the return and found it sufficient. The ease is not one of no service, but, at the most, one of defective or insufficient service. The decision of the court that the service was sufficient may have been erroneous and subject to reversal upon appeal. But the judgment was not rendered without notice, and is not *466subject to be assailed collaterally as a void judgment. The case falls within the principle of Ballinger v. Tarbell, 16 Iowa, 491, and Shea v. Quintin, 30 Id., 58.

AFFIRMED.