--

as, for in

If a venue be inserted, and is on its face absurd stance, when there is no county in the State bearing the name mentioned the court may disregard the error if reference to the process itself indicates the officer's county."

43

3. Date of receiving the process.]—The officer's indorsement of the time of receiving the writ is not evidence as against other persons, unless it is made his duty by law to make such indorserent. His omission to make such indorsement will not invalidate the effect of the writ or the return of its execution, even where there is such a statute, for the statute may be deemed directory.++

45

4. Date of return.]— The officer may indorse each successive step he takes at the times of the respective acts, or he may wait until all his proceedings are concluded, and indorse the whole return at once. Care should therefore be taken to distinguish between the date of the doing of the act which he returns that he has done, and the date of the return as an instrument.46 If the former date is explicitly stated, it is not important that the date of signing the instrument is not given, except where questions of priority may depend on the time of the return, and even in such case it may be that the date of filing the return will govern. But an error in dating the instrument may embarrass where the statute requires return within a limited time.48

47

42 Higgins v. Bullock, 66 Ill. 37. (Summons directed to sheriff of Wabash county, returned under venue of "Nash" county, there being none such in the State.)

43 Abb. Tr. Ev. (2d ed.) 1042.

44 Bealls v. Guernsey, 8 Johns. 41; s. P., Hutchins v. Carver Co., 16 Minn. 13. In New York there is such a provision relating to executions. N. Y. Code Civ. Pro., § 1363. The person delivering any process whatever may require a memorandum signed by the sheriff of the day and hour of its receipt. Id., § 100.

45 Glover v. Whittenhall, 2 Den. 633, 635.

46 A date inserted immediately before the signature was treated as the date of the fact returned in Greenman v. Harvey, 53 Ill. 386, and Lackey v. Seibert, 23 Mo. 85, in order to support the return. It was treated as the date of the return, and not of the fact returned, for the same purpose in Chicago, etc., R. R. Co. v. Kaehler, 79 Ill. 354.

47 Reid v. Jordan, 56 Geo. 282. (Presuming regularity in point of time in the absence of both dates.)

48 Thus where the process bore date after the date of the sheriff's return of service, the return was held no evidence, and need not be traversed, and, though the sheriff was dead, the defendant might testify that he was not served, and it was error to exclude such evidence. Keaton v. Moore, 59 Ga. 553.

5. Date of the act done.]-A return of service of process should state the date on which the service was made. There is difference of opinion as to whether, when the day is not stated, the court may go by the date of the return, and, if that be within the period when service would be sufficient, sustain the jurisdiction. The better opinion is that, unless the statute requires the time to be stated, this is prima facie sufficient.51 But under code procedure the judgment might be impeached by showing that the service was made at such a time within that period as to be illegale. g., on a Sunday or election day.

59

6. Reference to the instrument served.]— Blanks and mistakes in the reference made by a return to the instrument served, are generally held not to vitiate the proceedings thereon, nor prevent acting on the return as sufficient, if by fair and reasonable intendment the meaning is clear, and one could not be misled.

But the date attached to an officer's return is not to be taken as evidence that the notice was given on the day of the date, where that would be inconsistent with the return itself. Thayer v. Stearns, 1 Pick. 109.

An error in the date of the return to an attachment was held amendable according to the fact in order to sustain the proceedings thereon, in Kidd ť. Dougherty, 59 Mich. 240, 26 N. W. Rep. 510.

49 Wilson v. Greathouse, 1 Scam. (III.) 174 (refusing to allow defect to be supplied by parol, though the officer was dead); Clemson v. Hamm, Id. 176; Ogle v. Coffey, Id. 239; Emerson v. Upton, 9 Pick. 167 (allowing amendment by the officer to protect himself from liability at the expense of a third person who had purchased an apparently good title, was held error). Dick t. Moore, 85 Ill. 66; Hakes v. Shupe, 27 Iowa, 465.

50 As in Iowa, Hakes v. Shupe, 27 Iowa, 465; Diltz v. Chambers, 2 G. Greene, 479 (holding the statement in such case indispensable).

51 Lackey v. Seibert, 23 Mo. 85; Marlow v. Kuhlenbeck, 2 Colo. 602.

In Reid r. Jordan, 56 Geo. 282, where there was no date either of the return or the act done, the court held, nevertheless, that the general presumption of the performance of official duty rendered it prima facie sufficient.

In Johnson v. Day, 17 Pick. 106, an obvious clerical error in the year was allowed to be amended.

Where the return day is fixed by law, and, being the return day of original process, cannot be anticipated, a return that "I have this day attached," etc., stating a date earlier than the return day, and adding, "and I further return that I am unable to find, etc., without further date, but filed on the return day, may be construed, in support of the judgment thereon as a return made and dated on the return day. Hitchcock v. Hahn, 60 Mich. 459, 27 N. W. Rep. 600; s. P., Glover v. Whittenhall, 2 Den. 633, 635.

52 McNab v. Young, 81 Ill. 11; Norton v. Meader, 4 Sawy. 603, 618 (FIELD, J.) Return of service of " a true of this writ." Held sufficient to show

service by copy.

Chicago & St. L. R. R. Co. v. Holbrook, 92 Ill. 297.

Return stating served

by delivering a true copy to, etc., without saying what was served or of what a copy, sustained.

See, also, Smith v. Boyd, 101 N. Y. 472, a case of similar omission in a statutory acknowledgment.

7. Description of act done.]-A return stating the act done, merely in the language of the statute, or even in more general terms, is often held sufficient: for an officer shown to have performed the act is presumed to have performed it in a proper

manner.

This rule has its appropriate application to cases of return of personal service of process, whether in courts of general jurisdiction or limited jurisdiction, if unfettered by peculiar statutory requirements.53

But where a return is relied on as a foundation for ordinary constructive service, or as evidence that constructive service was duly made, or as divesting a person of his title to real property, a stricter rule is often applied.

The question here indicated depends too much upon the nature of the proceeding, the terms of the statute, if any, prescribing it, and the local practice, to make any statement of a general rule here, a safe guide as applying to returns generally.

54

Hammond v. Baker, 39 Mich. 472. Return misnaming complaint, in one place "declaration," sustained.

It is worthy of notice that the test for such questions, arising on affidavits, is whether perjury would lie.

53 In Van Kirk v. Wilds, 11 Barb. 520, 525, this rule was applied to proceedings in a justice's court. (Omission to state that copy was duly certified by the officer, supplied by the presumption that he performed his statutory duty.) Harris, J., said: "Some things may be presumed in favor of a proper discharge of duty by a public officer. When he returns that he has made personal service of process, he is not required to state what particularly he did to con stitute such service. It will be presumed that he did all that the law requires. If it was that he should read the process to the defendant, it may be presumed that he read it. If the law required that he should deliver a copy, it may b presumed that the copy was delivered; and when it is required that the copy delivered shall be certified by him, it may be presumed that it was so done. In such cases it must be made affirmatively to appear, that the requirements of law have not been complied with, before advantage can be taken of a defect in the mode of service."

In personal service the law is liberal in construing the return. Thus, in an old case in Alabama, the word "executed," signed by the officer, was held to be a sufficient return to a summons, the court saying that the word implied that the writ had been executed according to law. In other States there have been like rulings. Murf. Just. Prac., § 429, citing Mayfield v. Allen, 1 Minor (Ala.), 274; Commonwealth v. Murray, 2 Va. Cases, 504; Bridges v. Ridgley, 2 Litt. (Ky.) 395; Semmes v. Patterson, 65 Miss. 6.

Where the return stated service of a copy upon three defendants, but in the margin were the officer's fees for three copies, held that this was part of his return and showed service of a copy on each. Martin v. Hargardine, 46 III. 322.

54 Where reading or delivery of a copy is expressly required to make good service, the return should state one or the other. Botsford v. O'Conner, 57 Ill. 72, 81. (But the objection was held not available for collateral attack.) Stating that the party was informed of the contents, is not enough instead of reading. Maher v. Bull, 26 Ill. 348.

Where a strict rule is applicable, it is generally agreed that if strict compliance with the statute is indicated, informality in the language indicating it, is to be disregarded. A statement of a conclusion of law such as " duly served "-will not suffice to show that the acts necessary to constitute due service were done.

55

A return of service by reading should state the reading as "to" the person served. Bain v. Galyear, 10 Iowa, 585; Hunter v. Stoneburner, 92 Ill. 75. "Served by reading in the hearing of" the witness, held not equivalent to the statutory duty of reading to him. Tooney v. State, 5 Tex. App. 163; Hynek v. Englest, 11 Iowa, 210.

But a return of reading in the hearing of the person and delivery of a copy to him were held sufficient in Anderson v. Kerr, 10 Iowa, 233; Grosvenor t Henry, 27 id. 269.

Where the statute requires a delivery of a copy, a return that it was served by reading, is not enough. Newlove v. Woodward, 9 Nebr. 502; Noleman t. Weil, 72 Ill. 502.

In Hedges v. Mace, 72 Ill. 472, a return of "served by serving them each with a true copy," etc., was held substantially sufficient to show delivery to each.

In Russell v. Butler (Tex. Civ. App.), 71 S. W. Rep. 395, a return of "executed by delivering to C. R. and M. R., the within defendants in person, a true copy of this citation," was held insufficient to show service upon each of a true copy of the writ.

In Rosenthal v. Renick, 44 Ill. 202, a foreign judgment was sustained on a return of the writ as "served personally by copy," with date and signature. A return that he could not find the defendants is sufficient evidence that he could not find either of them. Hitchcock v. Hahn, 60 Mich. 459, 27 N. W. Rep. 600 (the court saying that the return would be false if one could be found).

In Farris v. Powell, 10 Iowa, 553 (partition), default was held not sustainable, because the return did not show, as required by statute, section 1723, whether a copy of the petition was required by defendant.

In Woodward v. Whitescarver, 6 Iowa, 1, the service was held insufficient because the copy which the defendant required to be sent to an attorney was sent to his own residence instead.

Lewis v. Botkin, 4 W. Va. 533. Return of having posted, held not evidence of leaving posted, required by the statute, so as to sustain default. Wistar v. Philadelphia, 86 Penn. St. 215. Return of posting on the premises not sufficient to show posting on a conspicuous part of the premises.

For other authorities in favor of showing strict compliance with the statute, see Diltz v. Chambers, 2 G. Greene, 479; Hakes v. Shupe, 27 Iowa, 465; Gilbreath v. Kuykendall, 1 Ark. 50; Russ v. Gilman, 10 Me. 209.

It is the duty of the sheriff, say the court in Sharp v. Baird, 43 Cal. 577, to state in his return what acts he performed in serving the writ, so the court may decide on its sufficiency. Hence an attachment was not sustained by return of posting "notice" (when the law required posting a "copy attachment), and omitting to state whether there was an occupant.

Diligence in unsuccessful attempt to find defendant presumed. Sturgis t. Fay, 16 Ind. 429.

55 Hodges v. Hodges, 6 Iowa, 78. Sufficient in New Jersey. Norton r. Berlin Bridge Co., 51 N. J. L. 442.

Perry v. Dover, 12 Pick. 206, 211, holding that this rule applies even to notices of town, district, or corporate meetings, which are indulged with some laxity.

Ezelle v. Simpson, 42 Miss. 515, holding "executed" on, etc., naming the party, not enough to sustain default, without saying how or where served.

But a statement, although in broken or imperfect language, if obviously intended to show the acts done, is sufficient if the acts so shown or distinctly implied are sufficient to constitute due. service.

When the question arises upon the presentation of the return to the court, or the attorney, for action thereon, the test ought usually to be whether there is evidence on which the court ought to act against an absentee without further inquiry. When, however, the court has acted, and the question arises before another court as to whether a defect in the return impairs proceedings had solely thereon, the test ought to be whether the return was sufficiently explicit to sustain without question an action for false return in case legal service was not made. When the question comes up thus collaterally, however, the proceeding is often supported notwithstanding a defect on the face of the return, by recitals in the order or judgment indicating that the court had further evidence before it.56

8. Matters not within official duty.]— Matters not within the official duty of the officer are not established by stating them in the return.57 Such matters, if necessary to be brought before the court in connection with the return, should be shown by affidavit.

9. Place.] In a court of general jurisdiction the omission of the return of service to state in what place service was made, or that it was within the county or other district of the officer, does not vitiate the judgment.58

Otherwise of the process of a court of limited or special juris

Charless v. Marney, 1 Mo. 537, holding the same of "lawfully executed." York v. Crawford, 42 Miss. 508, holding the same of "executed on the defendant in person."

Moore v. Coats, 43 Miss. 225, holding the same of "executed by summoning." But in Hunter v. Stoneburner, 92 Ill. 75, “executed by reading sufficient. City v. Cathcart, 10 Phila. Rep. 103; s. c., 31 Leg. Int. 4, holding "served by serving a copy of original summons," etc., a conclusion of law, and not enough to sustain judgment.

Davis v. Patty, 42 Miss. 509, holding that "executed by personal service" does not imply delivery of copy.

56 See Mullin's Appeal, 2 Cent. Rep. 843.

57 Browning v. Hanford, 5 Den. 586, 598.

Obermeier r. Core, 25 Ark. 562 (return of leaving things in possession of third person under agreement of parties inserted in return of levy).

Johnson v. Murphy, 42 Vt. 645 (return that defendant was in militia service on the day, as excuse for his not obeying the process served).

58 Knowles v. Gaslight, etc., Co., 19 Wall. 58 (sustaining the judgment against collateral attack, for due performance of duty may be presumed).