Goodwin v. Goldberg
| Decision Date | 24 June 1932 |
| Citation | 161 A. 375 |
| Parties | GOODWIN v. GOLDBERG. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Sullivan County; Sawyer, Judge.
Writ of entry by E. Charles Goodwin against Morris Goldberg. On motion of defendant appearing specially to dismiss the action for lack of proper service, the case was transferred from the lower court without ruling.
Case discharged.
Writ of entry, to recover possession of certain premises in Claremont. The plaintiff is a resident of Claremont, the defendant a resident of Massachusetts. On January 21, 1932, the date of the writ, the premises were occupied by Edward Kassap, a tenant of the defendant. On January 22 Kassap was committed to the house of correction. A copy of the writ with the return of the real estate attachment indorsed thereon was served upon him there. The sheriff's return, dated January 23, 1932, is as follows: "The said principal defendant not being an inhabitant of this state, I summonsed said defendant, as within commanded, by giving in hand to Edward Kassap, his tenant near the land attached, an attested copy of this writ, with my return endorsed thereon."
The defendant, appearing specially, moved to dismiss the action for lack of proper service. The question whether the return constitutes sufficient service was transferred by Sawyer, C. J., without a ruling.
Hugh Moore, of Claremont, for plaintiff.
Henry N. Hurd, of Claremont, for defendant.
"If the defendant is not an inhabitant of the state, and the writ is not served on him in person within the state, but his goods or estate are attached, an attested copy of the writ and of the return of the attachment may be * * * left * * * with his tenant on or near the land attached." P. L. c. 331, § 4. The question transferred involves the construction of the phrase "with his tenant on or near the land attached."
As a general rule, the return of a sheriff is conclusive upon all matters material to be returned, and cannot be contradicted by the parties. Bolles v. Bowen, 45 N. H. 124; National Bank of Lebanon v. Mascoma Flannel Company, 70 N. H. 227, 46 A. 49. "The remedy for a false return is by suit against the sheriff, and not by defeating the proceedings in which such return is made." Bolles v. Bowen, supra, and cases cited. Although this rule is not an inflexible one (Galusha v. Cobleigh, 13 N. H. 79, 83; Wendell v. Mugridge, 19 N. H. 109, 113; 2 Hening's Digest 1432, 1433), it is unnecessary at this time to determine its exact limits, since the assumption that service to be valid should have been made upon the defendant's tenant at a time when he was actually on or...
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Clark v. Bradstreet
...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. Th......
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Pike v. Scribner
...(49 Col.L.Rev. 136, 137) but this rule is not a Draconian net engulfing all cases. The 'rule is not an inflexible one.' Goodwin v. Goldberg, 85 N.H. 548, 549, 161 A. 375. The fundamental inquiry relates to the service of the writ in fact and not the sheriff's return of service. This was dem......
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...v. Dover Nat. Bank, 62 N.H. 491. The sheriff's return may be amended in the superior court to accord with the facts. Goodwin v. Goldberg, 85 N.H. 548, 161 A. 375. Exceptions All concurred. ...
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