Nocera v. Lembo, 1700-A
| Court | United States State Supreme Court of Rhode Island |
| Writing for the Court | JOSLIN |
| Citation | 298 A.2d 800,111 R.I. 17 |
| Parties | Carmelina NOCERA, Administratrix v. Eva LEMBO. ppeal. |
| Docket Number | No. 1700-A,1700-A |
| Decision Date | 09 January 1973 |
Page 800
v.
Eva LEMBO.
[111 R.I. 22]
Page 801
Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for plaintiff.Donald R. Lembo, North Providence, for defendant.
[111 R.I. 18] 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.
Page 802
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 [111 R.I. 19] 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 [111 R.I. 20] 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...
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Heal v. Heal, 98-577-Appeal.
...courts for guidance or interpretation of our own rule. Smith v. Johns-Mansville Corp., 489 A.2d 336 (R.I.1985); see Nocera v. Lembo, 111 R.I. 17, 20, 298 A.2d 800, 803 (1973); Giarrusso v. Corrigan, 108 R.I. 471, 472, 276 A.2d 750, 750 (1971). For these reasons, Federal precedent offers sig......
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AO Alfa Bank v. Doe, C. A. WM-2020-0361
...for guidance or interpretation of our own rule." Smith v. Johns-Manville Corp., 489 A.2d 336, 339 (R.I. 1985) (citing Nocera v. Lembo, 111 R.I. 17, 20, 298 A.2d 800, 803 (1973); Giarrusso v. Corrigan, 108 R.I. 471, 472, 276 A.2d 750, 750 (1971)). Rule 6(e) of the Superior Court Rules of Cri......
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Rosen v. Rosen, 77-367-A
...with a copy of this citation, in the hands and possession of the within named respondent." 4 Prior to our decision in Nocera v. Lembo, 111 R.I. 17, 298 A.2d 800 (1973), an officer's return was deemed conclusive and could not be controverted by motion or plea. That case, however, permits the......
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Burns Electronic Supply Co. v. Westmoreland, 73-264-A
...is conceded that Westmoreland is the agent for service of process. 2 This particular question remained unresolved until Nocera v. Lembo, 111 R.I. 17, 20, 298 A.2d 800, 803 (1973), where we said that the return could be impeached by a showing of strong and convincing 3 Rule 60(b) also permit......
-
Heal v. Heal, 98-577-Appeal.
...courts for guidance or interpretation of our own rule. Smith v. Johns-Mansville Corp., 489 A.2d 336 (R.I.1985); see Nocera v. Lembo, 111 R.I. 17, 20, 298 A.2d 800, 803 (1973); Giarrusso v. Corrigan, 108 R.I. 471, 472, 276 A.2d 750, 750 (1971). For these reasons, Federal precedent offers sig......
-
AO Alfa Bank v. Doe, C. A. WM-2020-0361
...for guidance or interpretation of our own rule." Smith v. Johns-Manville Corp., 489 A.2d 336, 339 (R.I. 1985) (citing Nocera v. Lembo, 111 R.I. 17, 20, 298 A.2d 800, 803 (1973); Giarrusso v. Corrigan, 108 R.I. 471, 472, 276 A.2d 750, 750 (1971)). Rule 6(e) of the Superior Court Rules of Cri......
-
Rosen v. Rosen, 77-367-A
...with a copy of this citation, in the hands and possession of the within named respondent." 4 Prior to our decision in Nocera v. Lembo, 111 R.I. 17, 298 A.2d 800 (1973), an officer's return was deemed conclusive and could not be controverted by motion or plea. That case, however, permits the......
-
Burns Electronic Supply Co. v. Westmoreland, 73-264-A
...is conceded that Westmoreland is the agent for service of process. 2 This particular question remained unresolved until Nocera v. Lembo, 111 R.I. 17, 20, 298 A.2d 800, 803 (1973), where we said that the return could be impeached by a showing of strong and convincing 3 Rule 60(b) also permit......