Nocera v. Lembo

• Decision Date: 09 January 1973
• Docket Number: No. 1700-A,1700-A
• Citation: 298 A.2d 800,111 R.I. 17
• Parties: Carmelina NOCERA, Administratrix v. Eva LEMBO. ppeal.
• Court: Rhode Island Supreme Court

Page 800

298 A.2d 800

111 R.I. 17

Carmelina NOCERA, Administratrix v. Eva LEMBO.

No. 1700-Appeal.

Supreme Court of Rhode Island.

Jan. 9, 1973.

Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for plaintiff.

Donald R. Lembo, North Providence, for defendant.

OPINION

JOSLIN, Justice.

In this civil action in the Superior Court the defendant moved to dismiss on the ground that failure to serve her with process in the manner provided by Super.R.Civ.P 4(d)(1), ¹ deprived the court of jurisdiction over her person. Her motion was denied and she appealed. Thereafter, the plaintiff asked us to dismiss that appeal on the ground that the case had not been finally determined in the Superior Court. We denied her request to dismiss the appeal, Nocera v. Lembo, 109 R.I. 956, 288 A.2d 271 (1972), and the case is now here for decision on the defendant's jurisdictional challenge.

The defendant supports her motion with an affidavit stating that the deputy sheriff charged with the service of process swore falsely when he recited in his return that on January 10, 1972 he left copies of the complaint and summons 'at (the) usual place of abode of said (d)ef., with a person of suitable age and discretion then residing therein.' Those papers, the affidavit continues, were not delivered to her by that officer, but were sent by regular mail and deposited at her dwelling on January 10, 1972 by a letter carrier.

As no counter affidavits were filed and no testimony was taken, all that was before the trial justice was the deputy sheriff's return plus defendant's motion and accompanying affidavit. Upon that record, supplemented only by arguments of counsel, he found that service was made upon defendant in the manner prescribed by Rule 4(d)(1), and that existing law did not at that stage of the proceedings permit consideration of defendant's sworn assertion that the process server had falsified his return. Accordingly, he denied defendant's motion to dismiss. This appeal followed.

The principles upon which the trial justice relied are of long standing. At their core is the rule that an officer's return is conclusive with respect to the recital of his doings, and that it cannot be controverted by motion or plea. Shannon v. Norman Block, Inc., 106 R.I. 124, 256 A.2d 214 (1969); ² Turks Head Tailoring Co. v. Anthony, 38 R.I. 7, 94 A. 857 (1915); N. Angell & Son v. Bowler, 3 R.I. 77 (1854).

That a party injured by an officer's false or fraudulent return of a writ could not directly attack that return did not mean that he was completely remediless. Even in early times he could sue the sheriff on his bond. In addition, a court of equity, always a court of conscience, would assist by enjoining the enforcement of a judgment based bupon such a return. Dowell v. Goodwin, 22 R.I. 287, 291, 47 A. 693, 695 (1900); Locke v. Locke, 18 R.I. 716, 30 A. 422 (1894).

Now that law and equity have been merged as the result of the 1966 adoption of new Rules of Civil Procedure of the Superior Court, it no longer makes good sense to dany a party claiming injury an opportunity to challenge directly by plea or motion an allegedly false or fraudulent return or to contradict the recitals contained therein. 1 Kent, R.I.Civ.Prac. § 4.12 at 41.

He enjoys that opportunity in the federal system where the courts, while importing verity to a process server's return, nonetheless allow the presumption of its regularity to be overcome by strong and convincing evidence of its inadequacy. Hicklin v. Edwards, 226 F.2d 410, 414 (8th Cir. 1955); 4 Wright & Miller, Federal Practice & Procedure § 1130 at 544-46 (1969); 2 Moore, Federal Practice 4.43 at 1295.3-.5 (1970). Evidence to be that persuasive, a federal judge has said, demands corroboration of an interested person's testimony, and the presentation of an almost irrefutable case for impeachment. Halpert v. Appleby, 23 F.R.D. 5, 6 (S.D.N.Y.1958).

In construing the Superior Court rules it has been our practice to look for guidance in the precedents of the federal courts, upon whose rules those of the Superior Court are closely patterned. Giarrusso v. Corrigan, 108 R.I. 471, 276 A.2d 750 (1971); Bragg v. Warwick Shoppers World, Inc., 102 R.I. 8, 11, 227 A.2d 582, 584 (1967); Industrial Nat'l Bank v. Colt, 101 R.I. 488, 491, 224 A.2d 900, 902 (1966). Indeed, we will not look elsewhere unless there is 'strong reason' for doing so. Laliberte v. Providence Redevelopment Agency, 109 R.I. 565, 575, 288 A.2d 502, 508 (1972). Such a reason has not been shown in this case, and we therefore give to Super.R.Civ.P. 4(h) the same meaning which its federal counterpart (Fed.R.Civ.P. 4(g)) has received in the federal courts. Henceforth, then, the truthfulness of a sheriff's return, instead of being conclusively presumed, may be impeached by evidence which is strong and convincing.

Having determined the new guideline, we use it to test whether, as defendant claims, the process server in this case fraudulently and falsely represented that he left the complaint and summons at her usual place of abode. This deficiency, if true, is irremediable. It cannot be cured even though defendant may have acquired actual knowledge of these proceedings as a result of the delivery of process by the letter carrier at what was in fact her dwelling. Kadet-Kruger & Co. v. Celanese Corp., 216 F.Supp. 249 (N.D.Ill.1963); Frasca v. Eubank, 24 F.R.D 268 (E.D.Pa.1959).

As the case comes to us, however, the mere fact that the officer's proof of service may be false or fraudulent does not necessarily dictate how we should dispose of the case. For aught we know, that allegation was uncontradicted in the Superior Court, not because the deputy sheriff was guilty as charged, but solely because the rule of conclucivity...