State ex rel. Allen v. O'neill

• Court: Missouri Court of Appeals
• Writing for the Court: LEWIS
• Citation: State ex rel. Allen v. O'neill, 4 Mo.App. 221 (Mo. App. 1877)
• Decision Date: 19 June 1877
• Parties: STATE OF MISSOURI, TO USE OF G. B. ALLEN, ADMINISTRATOR, Respondent, v. JOSEPH O'NEILL ET AL., Appellants.

4 Mo.App. 221

STATE OF MISSOURI, TO USE OF G. B. ALLEN, ADMINISTRATOR, Respondent,

v.JOSEPH O'NEILL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 19, 1877.

1. In an action against A., a corporation, and B. and C., where the sheriff's return to the writ shows personal service of a copy of the writ and petition upon B., as president of A., and personal service of copies of the writ upon B. and C., held, that such return shows a sufficient service, and was conclusive that B. was president of A. at the time of the service.

2. A default will not be set aside on the ground that one who is served with a writ of summons believed it to be a subpœna, and failed to read it.

3. In an action on an attachment bond, where the property has been released on defendant's bond, given during the pendency of the action, damages may be recovered for losses and expenses incurred in defending the attachment, as well before as after the dissolution thereof.

APPEAL from St. Louis Circuit Court.

Affirmed.

FARISH & GRIFFIN, for appellants, cited: Wag. Stat. 1007, sec. 7; The State to use v. Beldsmeier, 56 Mo. 226; Roe v. Thomas, 19 Mo. 613.

SAMUEL REBER, with T. T. GANTT, for respondent, cited: The State to use v. Beldsmeier, 56 Mo. 226; Thomas v. Warden, 17 Mo. 435; The State v. Moore, 61 Mo. 276.

LEWIS, P. J., delivered the opinion of the court.

The Central Savings-Bank sued the plaintiff's intestate, Eugene Shine, who resided in Ireland, by attachment, the defendants, O'Neill and Nicholson, being sureties on the statutory bond. Shine appeared and gave bond for the release of the attached property, effecting a dissolution of the attachment. Upon a trial on the merits, judgment was rendered against Shine, who appealed to the Supreme Court, where the judgment was reversed and the cause remanded. The suit was thereupon dismissed by the plaintiff. Shine having died, his administrator instituted this suit on the attachment bond, against the principal and sureties. The plaintiff herein dismissed as to the Central Savings-Bank, and obtained judgment against the other defendants for the penal sum in the bond, with execution for $2,500, the damages assessed.

The defendants allege, for error, that there was no sufficient service of the process. The sheriff's return was as follows:

“Executed this writ in St. Louis County, on the 16th day of May, 1874, by delivering a copy of the writ and petition, as furnished by the clerk, to Joseph O'Neill, president of the Central Savings-Bank, and by delivering copies of the writ, as furnished by the clerk, to each, Joseph O'Neil and David Nicholson.

PHILIP C. TAYLOR, Sheriff.

By CON. S. HICKEY, Deputy.”

This return shows, on its face, an exact compliance with the law. Wag. Stat. 294, sec. 26; p. 1007, sec. 7. It is alleged, however, that O'Neill was not, in fact, president of the Central Savings-Bank at the time of the service, and that it was for that reason only that suit was dismissed as to the corporation. But the allegation is not sustained by any thing in the record. We cannot look beyond the return, which is conclusive upon the parties. In Hollowell v. Page, 24 Mo. 590, the defendants attempted to controvert the sheriff's return by proving that a copy of the writ was not left, as stated, with any white member of the family above the age of fifteen years, or at the usual place of abode of the party summoned. It was held that the parties were concluded by the statements in the return. These included, of course, the averment that the person with whom the copy was left was above the age of fifteen years, and was a member of the defendant's family. There seems no good reason why the sheriff's averment that O'Neill was president of the corporation should not be equally conclusive, even if an effort were made to show the contrary. It is enough, however, for the present purposes that the return shows a sufficient service.

The defendant Nicholson, in support of a motion to set aside the default entered against him, filed an affidavit setting forth, in effect, that when the summons was handed to him he supposed it was a subpœna, and appeared in court on the day therein mentioned, but heard nothing of the case; that he “did not read the paper further than to see that he was required to appear in court on a certain day therein named, and did not know that it was a writ in this case.” The court properly refused to sustain the motion. The statute requires that a copy of the writ be delivered to the defendant. It does not add, as a condition of effectual service, that he shall read it, or that he shall not suppose it to be a subpœna, or yet that he shall know it to be a writ. It provides for the...