Muldrow v. Bates

• Decision Date: 30 April 1838
• Citation: 5 Mo. 214
• Parties: WILLIAM MULDROW v. MOSES D. BATES.
• Court: Missouri Supreme Court

5 Mo. 214

WILLIAM MULDROW

v.MOSES D. BATES.

Supreme Court of Missouri.

April Term, 1838.

BATES and CARNEGY, for Appellant.

U. WRIGHT, for Appellee.

MCGIRK, J.

The plaintiff in error, Muldrow, was sued in the Circuit Court of Marion county, by a proceeding enacted by the statute of the State, a petition and summons; a writ issued on the same, commanding the sheriff of Marion county to summon the defendant to appear on a certain day in the Circuit Court, to answer the plaintiff the demand. The sheriff returned on the writ that he had served the same by reading the summons to the defendant; but the sheriff failed to say on his return whether he had or not read the petition to the defendant. On the return day of the writ the defendant failed to appear to the suit, and a judgment was taken against him by default. During the same term he appeared and moved to set aside the judgment by default, which the court refused to do; to reverse which, the cause is brought to this court Several errors are assigned, but the only one relied on is the refusal of the court to set aside the judgment by default. When the cause was called for argument the defendant in error moved the court for leave for the sheriff to now amend his return. This leave is resisted by Messrs. Carnegy and Bates, for the plaintiff in error, and supported by Mr. Wright, for the defendant.

To support the motion, the counsel for the defendant cites and relies on the 7th and 8th sections of the 6th article concerning practice at law, Rev. Code, 468-9. The 7th section says, that when a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed; nor shall the judgment upon such verdict, or any judgment upon confession, default, &c., be reversed, impaired, or in any way affected, by reason of the following imperfections: omissions, defects, matters or things, or any of them, in the pleading, process, proceeding, or record, namely: 1st. For want of any writ, original or judicial. 2nd. For any default or defect of process, or for misconceiving any process, or awarding the same to a wrong officer, &c. 3rd. For any imperfect or insufficient return of any sheriff, or other officer, or that the name of such officer is not set to any return actually made by him.

The section then proceeds to enumerate, in all, about twenty other things in like manner. Then the 8th section says, the omissions or imperfections, defects and variances, in the preceding section enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issues between the parties on the trial, shall be supplied and amended by the court, where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error or appeal.

It is insisted by the counsel for the defendant in error, that the third specification in the 7th section is exactly the thing which may be amended. I have no doubt that it is so. The specification is, that a judgment shall not be stayed or reversed for any imperfect or insufficient return of any sheriff. In the case at bar, the return is, were it not for the statute, clearly both imperfect and insufficient; for the law requires that the petition should be read to the party, or in some cases a copy of it left at his usual place of abode; were it not...