Clark v. Bradstreet

• Decision Date: 04 May 1954
• Citation: 104 A.2d 739,99 N.H. 55
• Parties: CLARK v. BROADSTREET.
• Court: New Hampshire Supreme Court

Page 739

104 A.2d 739

99 N.H. 55

CLARK v. BROADSTREET.

Supreme Court of New Hampshire.

Argued March 3, 1954.

Decided May 4, 1954.

Leahy & Denault, Claremont (Albert D. Leahy, Claremont, orally), for plaintiff.

Jean L. Blais, Berlin, specially for defendant.

LAMPRON, Justice.

The main issue for our decision is whether there was proper service on the defendant of the writ in this action.

The plaintiff maintains there was and gives the following bases for her position. The writ set up the defendant as a non-resident or of unknown residence. The sheriff attached her real estate in this state and made a return of non est inventus. The action was therefore properly entered under the provisions of P.L. c. 331, § 8 and notice by publication, § 9, constituted sufficient service on the defendant. Therrien v. Scammon, 87 N.H. 214, 215, 176 A. 116.

The defendant contends that because she was a resident of New Hampshire, a fact which she says she should be permitted to prove, service upon her was not governed by said sections 8 and 9 which pertain to service on a non-resident defendant but rather by section 2 of said chapter 331 which provides for service of writs by giving an attested copy thereof to the defendant or leaving it at her abode, neither of which was done is this case. Rainford v. Town of Newport, 83 N.H. 465, 144 A. 70.

This brings up the question of whether the defendant is to be permitted to offer evidence that she was a resident of Coos County at the time in contradiction of the sheriff's return to the effect that he has made diligent search and has not found the defendant within his county.

There is a considerable difference of judicial opinion in our country as to the conclusiveness of a sheriff's return. 42 Am.Jur. 110; 72 C.J.S., Process, § 100, p. 1140. However it has long been the law in New Hampshire that between the parties to a suit and those claiming under them the return of the sheriff of matters material to be returned is so far conclusive evidence, that it cannot be contradicted for the purpose of invalidating the sheriff's proceeding or defeating any right acquired under them. Lewis v. Blair, 1 N.H. 68; Brown v. Davis, 9 N.H. 76; Burney v. Hodgdon, 66 N.H. 338, 29 A. 493; Therrien v. Scammon, supra.

'The object of the rule was to protect the proceedings of the sheriff and the reason of it was the extreme inconvenience that must result from suffering the proceedings of the sheriff to be invalidated by calling in question the truth of his return. If the sheriff's return might thus be invalidated much mischief to parties would result from it, and much uncertainty in judicial proceedings would be the consequence.' Lewis v. Blair, supra, 1 N.H. at page 70. We think those considerations are as important today as they were then.

There being a non est inventus return in this case any evidence that defendant was to be found in Coos County at the time would be in direct contradiction of the return, Cf. Wendell v. Mugridge, 19 N.H. 109, 113; Martin v. Wiggin, 67 N.H. 196, 197, 29 A. 450, and would have the necessary consequence of invalidating the sheriff's proceedings and defeating rights acquired by the plaintiff under them. Such evidence was properly excluded, Brown v. Davis, supra, National Bank of Lebanon v. Mascoma Flannel Co., 70 N.H. 227, 228, 46 A. 49; Goodwin v. Goldberg, 85 N.H. 548, 161 A. 375.

The plaintiff has taken the position that the only issue involved is whether there was proper service on the defendant. The latter having appeared specially must limit herself to that issue for if she submits any other question to the Court she will waive any jurisdictional defect, Maryland Casualty Co. v. Martin, 88 N.H. 346, 347, 348, 189 A. 162; Lyford v. Trustees of Berwick Academy,...