Henderson v. Coleman
| Citation | 19 Wyo. 183,115 P. 439 |
| Decision Date | 30 June 1911 |
| Docket Number | 606 |
| Parties | HENDERSON v. COLEMAN ET AL |
| Court | United States State Supreme Court of Wyoming |
Original Opinion of May 9, 1911, Reported at: 19 Wyo. 183.
Rehearing denied.
OPINIONON PETITION FOR REHEARING.
A petition for rehearing has been filed by plaintiff in error. No new point is presented, but the admission of the return upon the summons in the case referred to in the ninth numbered paragraph or proposition in the former opinion it is earnestly contended was particularly erroneous and prejudicial for the reason that the one who made such return was not regularly appointed as special deputy to make the service, as shown by the endorsements on the process, and it ought not to have been used, as it was, as tending to impeach the plaintiff in error as a witness. It is strenuously argued that this item of evidence had the effect of turning the scales in favor of plaintiffs below upon the conflict in the evidence. As we view the matter the fact as to the regularity of the appointment of the special deputy sheriff was of no importance, and did not affect the relevancy or admissibility of the return. It was relevant to show the date of the alleged service upon the defendant below as explaining his affidavit referring generally to that return. If these matters were used in argument to the jury as suggested, as impeaching the testimony of the defendant below, it occurs to us that the impeaching matter was not the return, but the affidavit of the defendant himself. Further the defendant admitted on his cross-examination that the date of the alleged service of summons upon him was the 9th or 10th of August, and, as the return showed a service on the 9th of August, the latter can hardly be held to have been prejudicial. The defendant testified in the same connection that the summons had not been served upon him, while admitting that it was claimed or alleged to have been served. The return, if anything, tended to reduce the effect of this matter as impeachment, since it afforded an opportunity to attack in argument the force of the return, if, as here urged, there exists any good ground for challenging the method of appointing the deputy to make service of the summons, and, without the return, the jury had before them the admission of the defendant that service upon him at a certain time was alleged, and such service might otherwise have been supposed to have been...
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......The rule. applies, of course, to malicious prosecution suits. 38 C. J. 505; Rainsford v. Massengale, 5 Wyo. 1; Henderson v. Coleman, et al., 19 Wyo. 183; Boyer v. Bugher, . 19 Wyo. 463; Murphy v. Livestock Co., 26 Wyo. 455;. Stahley Land Co. v. Beckstead, 27 ......
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