Cohen v. Krigstein

• Decision Date: 12 May 1955
• Citation: 114 A.2d 225,10 Terry 256,49 Del. 256
• Parties: , 49 Del. 256 Clara COHEN and Joseph Cohen, Plaintiffs, v. Isaac KRIGSTEIN and Benjamin Seidel, also Known as Ben Seidel, Defendants.
• Court: Delaware Superior Court

Page 225

114 A.2d 225

10 Terry 256, 49 Del. 256

Clara COHEN and Joseph Cohen, Plaintiffs, v. Isaac KRIGSTEIN and Benjamin Seidel, also Known as Ben Seidel, Defendants.

Superior Court of Delaware, New Castle County.

May 12, 1955.

Stewart Lynch and Alfred R. Fraczkowski (of Hastings, Lynch & Taylor), Wilmington, for plaintiffs.

William Prickett and Jackson W. Raysor, Wilmington, for defendant Benjamin Seidel.

HERRMANN, Judge.

The Court is called upon to decide whether the defendant Benjamin Seidel may attack the verity of the Sheriff's return showing service of summons upon him.

This action was commenced on October 13, 1954. By endorsement on the writ of summons, the Sheriff made return of service of summons upon Seidel as follows:

'Summoned personally Benjamin Seidel and left with him a copy of the within writ together with a copy of the complaint on the twenty-fifth day of October, A.D., 1954.'

On November 12, 1954, prior to the filing of any responsive pleading, the plaintiffs filed an amended complaint and directed the issuance of another summons. By endorsement on this second writ, the Sheriff made return of service of summons upon Seidel as follows:

'Summoned personally Benjamin Seidel, also known as Ben Seidel and Isaac Krigstein and left with each of them a copy of the within writ together with a copy of the amended complaint on the seventeenth day of November A.D. 1954.'

Thereafter, Seidel appeared specially to contest jurisdiction over his person. He moved to vacate or set aside the Sheriff's return of service upon him on October 25, 1954 on the ground that he was not served with a summons in this case prior to the amendment of the complaint and the issuance of the second writ and, therefore, the return of service upon him on October 25, 1954 was a false return.

The plaintiffs contend that the sheriff's return is conclusive as between the parties in this action and that Seidel may not attack the verity of the return in this action by contradicting the fact of service upon him. Seidel contends that the return is presumed to be true and correct but that this presumption is rebuttable and not conclusive. It is agreed that the Sheriff's return of service on October 25, 1954 is complete and regular on its face. There is no allegation of fraud.

There is irreconcilable conflict of judicial opinion as to the conclusiveness of a sheriff's return of service of summons and the remedies available to one who is the subject of a false return. Some jurisdictions remain committed to the common law rule that, when a sheriff's return of service is complete and regular on its face, the return is conclusive as between the parties and the truthfulness of the return cannot be controverted by the defendant in the same action. Other jurisdictions have discarded the common law doctrine of absolute verity and, by statute or otherwise, have adopted the more liberal rule that the return is not conclusive but is only prima facie evidence of the facts therein stated. Under this rule, the defendant may impeach a return by extrinsic evidence in the same action, particularly before judgment. See Annotation 124 Am.St.Rep. 756, et seq.; 42 Am.Jur. 'Process', §§ 126, 127; 72 C.J.S., Process, § 100.

The law in this State on the precise question here presented has not been announced in any reported decision. In Smulski v. H. Feinberg Furniture Co., 1937, 8 W.W.Harr. 451, 193 A. 585, this Court indicated that the common law rule was applicable after judgment. The defendant contends that the Smulski case is not applicable because (1) the reason for according absolute verity to the return after it has become part of, and the basis for, a judgment, does not exist where, as here, the attack upon the return is made before judgment; and (2) the Smulski case was decided prior to the adoption of our Civil Rules at a time when we were wholly committed to common law practice and procedure.

The common law makes no distinction and recognizes no exception based upon the time of the attack upon the return. Under the common law doctrine, a sheriff's return, complete and regular on its face, is conclusive upon the parties ¹ and, in the absence of fraud, it cannot be set aside on evidence dehors the record even though the return is attacked before the entry of judgment. See Vaughn v. Love, 324 Pa. 276, 188 A. 299, 107 A.L.R. 1336; 124 Am.St.Rep. 756, 758.

The common law rule must be announced as the law of this State unless it has been repealed by statute, by rule of court or by a continued and recognized practice in derogation of the common law. Compare Buckley v. R. H. Johnson & Co., Inc., 2 Terry 546, 25 A.2d 392, 397. No applicable statute has been found and it does not appear that there is any established practice contrary to the common law rule.

The defendant points to Civil Rule 12(b)(2), Del.C.Ann. ² as the instrumentality by which we are relieved of the rigid common law doctrine. Since Rule 12(b)(2) does not expressly change the common law, the defendant's contention may be accepted only if it may be concluded that the common law has been amended or repealed by Rule 12(b)(2) by necessary implication.

It may not be presumed that a change in the common law was intended beyond that which is clearly indicated by express terms or by necessary implication from the language used. See Hazzard v. Alexander, 6 W.W.Harr. 512, 178 A. 873, 876. Repeal of the common law by implication is not favored and such change may be announced only in clear cases. Rule 12(b)(2) must be construed in connection with the previously existing common law upon the subject. Whether the Rule of Court repeals previously existing common law, in the absence of repeal in express terms, 'depends upon the presence or absence of an irreconcilable inconsistency between them, unless it is manifestly clear that the later enactment is intended to supersede the earlier law and embrace the whole...