Mills v. Howland

• Decision Date: 07 July 1891
• Parties: Mills v. Howland et al.
• Court: North Dakota Supreme Court

2 N.D. 30

49 N.W. 413

Mills

v.Howland et al.

Supreme Court of North Dakota.

July 7, 1891.

Syllabus by the Court.

1. After judgment entered in a case where there was no appearance by defendants, the trial court may, in furtherance of justice, and in affirmance of such judgment, permit the sheriff, on his application, and upon notice to the defendants, to amend his return of service of summons in accordance with the truth, and thus bring upon the record jurisdictional facts.

2. Such amended return, when filed, relates back to the original return, and has the same effect as if the amended return had been originally made.

Appeal from district court, Cass county; William B. McConnell, Judge.S. G. Roberts, for appellants. Francis & Southard, for respondent.

Bartholomew, J.

This is an appeal from an order denying a motion to set aside a judgment. It appears from the abstract that in June, 1888, the plaintiff attempted to bring an action against the defendants for the foreclosure of a mortgage. No appearance was made in the action by either Richmond W. or Charles H. Howland. An appearance was entered for Warner, who was a non-resident, but no answer filed. Judgment and decree were entered in the case in September, 1888, and the judgment recites that due and personal service had been made upon the defendants. The facts were, however, that the summons attached to the sheriff's return of service, and which he certified he personally served upon the Howlands by copy, was not subscribed by the plaintiff or her attorneys, as expressly required by section 4893, Comp. Laws, and this summons was marked “original.” On discovering that the summons returned by him was not subscribed by the attorneys, the sheriff, on affidavits and the papers in the case, moved the court for an order allowing him to amend his return. This motion was dated February 24, 1890. On February 26, 1890, an order was entered granting the motion, and directing an amended return to be filed nunc pro tunc. This order recites that the respective parties were represented by counsel in the argument on the motion. The affidavits upon which the motion was based are uncontradicted, and show that the copies of summons served upon the Howlands were subscribed in ink, with the names of plaintiff's attorneys; and the affidavit of one of said attorneys, and which was used upon the motion, shows that R. W. Howland was repeatedly in the office of plaintiff's attorneys after said service and before judgment, asking for an extension of time in the case, and that, on his request, plaintiff's attorneys delayed taking judgment for some time. In compliance with the leave given by the court, the sheriff filed an amended return attached to a complete summons. No exception to or appeal from this order was ever taken. On the 2d day of January, 1891, the defendant C. H. Howland served notice on plaintiff's attorneys of a motion to vacate the judgment and all subsequent proceedings therein, on the ground “that said judgment was entered without authority of law, and is void, in that no summons was ever issued therein, and the court never having acquired jurisdiction of the defendants, or either of them.” Subsequently this motion was heard and denied. The motion was made on the papers filed and the record in the case. From the order denying this motion C. H. Howland appeals. Section 4892, Comp. Laws, provides that actions shall be commenced “by the service of a summons.” Section 4893 reads as follows: “The summons shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to answer the complaint, and to serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the territory, to be therein specified, in which there is a post-office, within thirty days after the service of the summons, exclusive of the day of service.” The summons is served by delivering a copy thereof to the defendant, or leaving a copy at his dwelling-house in certain cases. No exhibition of the original is necessary. When the motion to set aside the judgment was made, the record disclosed full and complete legal service. The amended return, when filed, related back to the original return, and had the same effect as if the amended return had been originally made. Murfree, Sheriffs, § 880, and cases cited; also In re Lake, 15 R. I. 628, 10 Atl. Rep. 653. The ruling of the trial court upon the question of permitting the amendment is not before us. This appellant, by counsel, opposed that motion, but saw proper to take no appeal from the decision;...