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59 where the place must be stated; but saying that it was in a village named, is sufficiently definite.Ro
10. Signature.]— The return should, of course, be signed by the officer, 61 although at common law the omission of the officer to sign his return was not fatal to its validity, and such a defect is amendable.63
So the fact that an incidental part of the return -- for instance, a statement of the place of service — is added as if a postscript below the signature does not vitiate. 64
At common law a deputy sheriff can only act in the name of his principal; and hence a return, though of acts done by the deputy, was required to be made in the name of the sheriff, the name oi a deputy signed to the return being ineffectual.65
But the return may be signed with the sheriff's name by his deputy, adding name and addition as deputy. 66 So, the actual
Allen v. Blunt, 1 Blatchf. 480 (U. S. Cir. Ct.), under statute forbidding service except in the district in which the party is an inhabitant or found.
Alverson v. Dennison, 40 Mich. 179. (Process of a Justice's Court, served by a marshal having no authority to serve outside the city. Reversal of the judgment thereon, for this error.)
Contra, in New York in Justice's Court, under Code Civ. Pro., $ 2885. Beach v. Baker, 25 App. Div. 9, 48 N. Y. Supp. 1042.
60 Wilson v. Call, 49 Iowa, 463.
Omission to add official title does not vitiate. Martin v. Aultman, 80 Wise. 150.
62 Dewar v. Spence, 2 Whart. 211, 220 (holding it not ground for setting aside default entered thereon).
Rudy v. Commonwealth, 35 Pa. St. 166 (holding it not ground for excluding the return when offered in evidence).
By the statute of amendment the defect does not impair judgment in a court of record, nor, after verdict, etc., afford ground for a stay of judgment in a court of record. N. Y. Code Civ. Pro., 8 721.
63 Id., 88 721, 722, 725. See paragraphs 15 and 16, post.
Returns to State writs, such as mandamus, habeas corpus, etc., must be signed by the defendant, unless where otherwise specially prescribed by law, or the court or judge for cause shown otherwise directs. N. Y. Code Civ. Pro., $ 1995.
64 Wilson v. Call, 49 Iowa, 463.
65 Ryan v. Eads, Breese (Ill.), 168; followed in Ditch v. Edwards, I Seam. 127; S. P., Glencoe v. People, 78 Ill. 382; Bolard v. Mason, 66 Pa. St. 138; Mitchell v. Coram, 89 Va. 626; Reinhart v. Lugo, 86 Cal. 395.
To same effect, Campbell v. Swasey, 12 Ind. 70; McClure v. Wells, 46 Mo. 311, where, however, amendment was allowed.
To same effect, in case of an under sheriff. Joyce v. Joyce, 5 Cal. 449; followed in Rowley v. Howard, 23 id. 401.
66 Emley v. Drum, 36 Pa. St. 123. A return by the sheriff is equally conclusive against him when made in his name by his deputy as when made by himself. Sheldon v. Payne, 7 N. Y. 453.
writing of the name may be by a clerk authorized by the officer, if the officer adopts and delivers the signature as his.07.
But if the statute authorizes a deputy, or special deputy, 69 to serve or execute the process, or, according to some cases, even recognizes the office of deputy,o a return over his own name and addition alone, is enough.
11. — official addition.]— Omission to add to the signature indication of his county may be supplied by reference to the writ or process returned; or, if the officer be an officer of the court in which the return is produced, the fact may be judicially noticed. 72
12. Term expired.]— The fact that the officer has gone out of office is not an objection to his making the return.*3
13. Mode of making.— Filing.] — The return is not deemed made, in contemplation of law, until filed or presented to the court (or mailed, if the statute authorizes such mode of transmission), as the case may require.74
14. Neglect to return.]— If an officer fails to make return an order may be taken requiring him to show cause why he should
67 Gibson 0. Nat. Park Bank, 98 N. Y. 87 (case of a certificate of attachment, not a return).
68 Calender v. Olcott, 1 Mich. 344; Gibson v. Nat. Park Bank, 98 N. Y, 87. 69 Glencoe v. People, 78 Ill. 382.
A person specially appointed by a sheriff to serve a writ, though his appointment is not under seal, is an officer de facto for that purpose. Jewell v. Gilbert, 64 N. H. 13, 5 Atl, Rep. 80.
70 Eastman v. Curtis, 4 Vt. 616; Miller v. Alexander, 13 Tex. 497.
Notwithstanding the election or appointment of a new sheriff, the former sheriff must return, in his own name, each mandate which he has fully executed. N. Y. Code Civ. Pro., $ 186.
74 N. Y. Code Civ. Pro., § 825, provides as follows: “ A return or other paper in a special proceeding, where no other disposition thereof is prescribed by law, must be filed, and an order therein must be entered, with the clerk of the county in which the special proceeding is taken, if it is before a county officer or a judge of a court established in a city; if before a justice of the Supreme Court, with the clerk of a county designated by the justice; or if no designation is made by him, of a county where one of the parties resides."
Under 2 R. S. 537, § 17, requiring an officer executing process for contempt to return it during the sitting of the court on the return day, even though the attachment is returnable at a particular hour of the day, the officer is not compelled to return it at the hour, except by order of the court, when he is present. If he is absent, an ex parte order for an attachment against him, entered before the adjournment of the sitting of that day, is irregular. People v. Wheeler, 7 Paige, 433.
not make return or be punished for contempt," and by statute in New York, a summary method of compelling return by notice to return, and, on default, application for attachment is provided
But the remedy for a false return is not by moving to compel amendment.77
15. Amending without leave.]— Until the process is presented by the officer to the court, or filed with the clerk, his return thereon is in his own power, and may be amended without leave."
16. by leave.]— The return, no matter whether originally made by principal or deputy,'' may be set aside, so or may be amended by leave of court,81 either by the principals or by the deputy who actually executed the process,83 if he might have made the return; and it is no objection that either is out of office at the time of making the amendment.84 After his death it may be made on the application of his personal representative 86 But amendment is confined to the facts occurring under the process. After full return, facts subsequently occurring are not to be brought in.S
75 See CONTEMPT. 76 By N. Y. Code Civ. Pro., $ 2270; Gen. Rule No. 6. Matter of Dawson, 13 Civ. Pro. Rep. 142.
77 Smith v. Gaines, 93 U. S. 341.
78 Nelson v. Cook, 19 III. 440, 450. And where the return upon an execution was erased when offered to the court, and no explanation made, the court considered that no return was shown. Lopez v. Campbell, 163 N. Y. 340, 350.
79 Whittier v. Varney, 10 N. H. 291 (amendment of return to show which of two were served, allowed).
Primrose v. Browning, 59 Geo. 69; Johnson v. Sommers, 3 Bradw. (III.) 55 (holding it error to refuse to receive sheriff's return of schedule, added when general return had been held insufficient, in replevin against him).
80 Lopez v. Campbell, 163 N. Y. 340, 351. 81 The leave discretionary. Feurt v. Caster, 174 Mo. 289, 73 S. W. 576.
82 People v. Ames, 35 N. Y. 482 (sheriff permitted to amend return to execution, although an action was pending against him for an insufficient and false return.) Hall v. Ayer, 9 Abb. Pr. 220, 19 How. Pr. 91 (sheriff required to pay motion costs). Burnham r. Brennan, 42 N. Y. Super. Ct. 49.
Unless shown to be not reliably cognizant of the facts. Jarboe 0. Hall, 37 Md. 345.
83 Rapp v. Kyle, 26 Kans. 89; abst. s. c., 13 Repr. 525.
Rapp v. Kyle, 26 Kans. 89; abst. s. C., 13 Repr. 525 (deputy amending his own return).
85 Scruggs v. Scruggs, 46 Mo. 271. 86 Bibb v. Collins, 51 Ala. 450.
The court has power to amend by order, 87 and, in furtherance of justice, even after the officer's death.
An amendment may have effect by relation back to the original return.
17. — notice.]— Notice to the adverse party of application for leave to amend is not required; 89 for the officer's liability for a false return is deemed a sufficient assurance. 90 But this rule in some jurisdictions is restricted to motions made at the same term.” Upon notice it may be done at any time, 92 even after action begun against the sheriff for an insufficient or false return. Lapse of time is not necessarily an objection.94
18. reserving rights of third persons.] - - An amendment should be without prejudice to the intervening rights of third persons, acquired in good faith, without notice; % but such a person is chargeable with constructive notice of what was contained in the record at the time he acquired his title. 98
19. Impeaching. ]—A motion to set aside the proceedings founded on a return may be made on the ground of defects in the return; and a motion to set aside the return itself may be made on grounds of falsity, collusion, fraud, or want of jurisdiction.97 Falsity of a return is not relieved against nor inquired into in a
87“ A court, to which a return is made by a sheriff or other officer, or by a subordinate court or other tribunal, may, in its discretion, direct the return to be amended, in matter of form, either before or after judgment.” N. Y. Code Civ. Pro., § 725.
88 Daniels v. Hamilton, 52 Ala. 105.
Such applications are regarded with liberality. Golden Paper Co. v. Clark, 3 Colo. 321.
90 In Stetson v. Freeman, 35 Kans. 523; s. c., 11 Pac. Rep. 431, the sheriff was compelled to amend, by motion, on notice to him only.
91 O'Conner v. Wilson, 57 Ill. 226, 230.
92 Nat. Ins. Co. 1. Chamber of Commerce, 69 Ill. 22, 26; Planing Mill Co. t. Nat. Bank, 86 id. 587.
93 People v. Ames, 35 N. Y. 482. (Leave to amend granted on payment of costs of pending action to date of application.)
94 Gilman v. Stetson, 16 Me. 124 (twenty years, but no right of others intervened). Judd v. Smoot, 93 Mo. App. 289 (ten years).
Where twenty-six years had elapsed, amendment to make out statutory title to sustain ejectment was refused. Russ v. Gilman, 16 Me. 209.
5 Glidden r. Philbrick, 56 Me. 222, 227, and cases cited; s. P., Emerson v. Upton, 9 Pick. 167.
96 Whittier 0. Varney, 10 N. H. 291.
97 On motion to set aside judgment on the service, the return is only prima facie evidence. Carpenter 0. Anderson (Tex. Civ. App.), 77 S. W. Rep. 291; Parker r. Van Dorn Iron Works, 23 Ohio Cir. Ct. 444.
collateral proceeding, but only on a direct motion to set the re turn itself aside, or by an action against the officer.
The return of an officer that he has executed an order or process so far as it defeats a remedy, as for instance by the discharge of a person directed thereby to be discharged, falls by a reversal of the order, thus restoring the original process which the order discharged.
FORM No. 216.
Return of service: short form. 1 [Venue.]
I hereby certify that, on the at in the county of
I served the within (writ] upon the within named [specifying person by same name as in writ]? by reading the same to him. Dated this
county. [Signature of]
38 Forbes v. Waller, 25 N. Y. 430, 440; High Rock Knitting Co. r. Bronner, 18 Misc. 631, 43 N. Y. Supp. 683; Sperling v. Levy, 10 Abb. Pr. 426; Barrows 0. Nat. Rubber Co., 13 R. I. 48; abst. 8. C., 22 Alb. L. J. 274. In Leggat r. Leggat, 79 App. Div. 141, 80 N. Y. Supp. 327, it was assumed that in an action on a partnership debt, a defense by the representative of a deceased partner that an execution against the survivor had been returned unsatisfied by collusion, would have been available if the charge of collusion had included the sheriff. (Aff'd on opinion below in 176 N. Y. 590.)
8. P., Il. Steel Co. v. Dettlaff, 116 Wis. 319, 93 N. W. Rep. 14. Contra in Nebraska. Baldwin v. Burt (Neb.), 96 N. W. 401.
99 Benedict, etc., Mfg. Co. v. Thayer, 21 Hun, 614.
1 Sustained by Ball v. Shattuck, 16 Ill. 299, for cases where the stat. nte does not otherwise provide.
The shortest return is that sanctioned by usage and statute in New Jersey, viz., “C. C.,” or “C. C. C.," meaning respectively that he hath taken the body, or taken it into custody.
2 See Alexander e. McDow, 108 Cal. 25, for an inaccuracy in naming the person served which, however, did not vitiate. S. P., Gate City Abstract Co. p. Post, 55 Neb. 742; Davis v. Burt, 7 Iowa, 56.