Pike v. Scribner

• Decision Date: 20 June 1958
• Citation: 101 N.H. 314,142 A.2d 154
• Parties: Marilyn F. PIKE v. George C. SCRIBNER. Roland M. PIKE v. George C. SCRIBNER.
• Court: New Hampshire Supreme Court

Page 154

142 A.2d 154

101 N.H. 314

Marilyn F. PIKE v. George C. SCRIBNER.

Roland M. PIKE v. George C. SCRIBNER.

Supreme Court of New Hampshire.

Argued May 7, 1958.

Decided May 29, 1958.

As Modified on Denial of Rehearing June 20, 1958.

Fisher, Parsons & Moran, Dover, for plaintiffs.

Devine & Millimet, Shane Devine, Manchester, for defendant.

KENISON, Chief Justice.

Service of process on the defendant was sought to be made by leaving a copy at his abode in New Hampshire under the statute regulating process within the state. 'All writs and other processes shall be served by giving to the defendant or leaving at his abode an attested copy thereof, except in cases otherwise provided for. * * *' RSA 510:2. The plaintiff contends that the sheriff's return of service, which was regular on its face, is conclusive and its truthfulness cannot be controverted by the defendant. Clark v. Bradstreet, 99 N.H. 55, 104 A.2d 739. The defendant contends that the sheriff's return is not an absolute verity and that the sheriff's return is not so far conclusive that he is precluded from showing his nonresidence in fact. Superior Court Rule 45, 99 N.H. 614; Galusha v. Cobleigh, 13 N.H. 79; Wendell v. Mugridge, 19 N.H. 109; Annotation, 107 A.L.R. 1342.

The ancient common-law rule that a sheriff's return is conclusive has been retained in New Hampshire (Clark v. Bradstreet, supra) and a dwindling minority of jurisdictions (49 Col.L.Rev. 136, 137) but this rule is not a Draconian net engulfing all cases. The 'rule is not an inflexible one.' Goodwin v. Goldberg, 85 N.H. 548, 549, 161 A. 375. The fundamental inquiry relates to the service of the writ in fact and not the sheriff's return of service. This was demonstrated in Bissonnette v. Alpine, Inc., 96 N.H. 419, 420, 77 A.2d 586, 587: 'It is not the return, however, but the service of the writ, that gives jurisdiction. The return is merely evidence by which the court is informed that the defendant has been served.' In that case a defective sheriff's return was held to have conferred jurisdiction when supplemented by other evidence showing that service 'was in fact made on' the defendant. See also, Mathes v. Dover Nat. Bank, 62 N.H. 491; Clough v. Moore, 63 N.H. 111, 112. The New Hampshire cases relied upon by the defendant allowing a party to show nonresidence are supported by Restatement of the Law, Second (tentative draft No. 3, 1956), Conflict of Laws, § 77, comment d: 'Effect of sheriff's return. A state does not have judicial jurisdiction over an individual because a sheriff or other official of the state makes a return stating that he has served him with process in the state. Personal service in the state, and not the sheriff's return, is the basis of jurisdiction. The truth of the return may therefore be questioned in a court of any state.' To the same effect see Restatement, Conflict of Laws, § 77, comment a.

If this were a case of first impression, consideration would be given to the classic criticism of the common-law rule in Sunderland, The Sheriff's Return, 16 Col.L.Rev. 281, and the many cases which consider the rule archaic and unsound. Vaughn v. Love, 324 Pa. 276, 188 A. 299, 107 A.L.R. 1336. However this is unnecessary since our cases allow the defendant to show nonresidence. In Galusha v. Cobleigh, 13 N.H. 79, 83, it was said that the 'plaintiff is not estopped by the officer's return...