Taylor v. Helter

• Decision Date: 05 March 1918
• Docket Number: No. 14858.,14858.
• Citation: 198 Mo. App. 643,201 S.W. 618
• Parties: TAYLOR v. HELTER.
• Court: Missouri Court of Appeals

201 S.W. 618

198 Mo. App. 643

TAYLOR v. HELTER.

No. 14858.

St. Louis Court of Appeals. Missouri.

March 5, 1918.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Action by Frank Taylor against George Helter. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Hostetter & Haley, of Bowling Green, for appellant. Tapley & Fitzgerrell, of Bowling Green, for respondent.

ALLEN, J.

Plaintiff instituted this action in the circuit court of Pike county, seeking to recover the sum of $2,490 as damages alleged to have been sustained by him by reason of false and fraudulent representations charged to have been made by the defendant in the course of a transaction whereby plaintiff exchanged certain real estate for real estate belonging to the defendant. The defendant was served with a writ of summons on November 15, 1914, that day being Sunday. The sheriff's return, indorsed upon the writ, is as follows :

"I hereby certify that I served the within writ and process on the within named defendant, George W. Helter, by delivering to him the said George W. Helter a true copy of the petition and writ. All done on the 15th day of November, A. D. 1914. I further certify that the defendant, George W. Helter, is a nonresident of this state, and that at the time of the service aforesaid was about leaving the county and the state."

At the return term of the writ, to wit, on December 15, 1914, an interlocutory judgment by default was entered against defendant. Thereafter, and prior to the entry of final judgment, the defendant, limiting his appearance for that purpose only, moved the court to set aside the default and grant him a reasonable time in which to plead. This motion the court overruled. Thereafter, at the same term, the court entered final judgment in favor of plaintiff for the full sum prayed for in his petition. After unavailing motions for a new trial and in arrest, the defendant prosecuted his appeal to this court.

In the view which we take of the case, as it reaches us, it is unnecessary to look farther than the return of the sheriff, which is assailed as being insufficient to vest the court with jurisdiction to render personal judgment against the defendant. As appears by the return, the service was had on Sunday, and the officer serving the writ has undertaken to bring the service within the provision of section 1785, Rev. Stat. 1909, which provides that :

"No person, on Sunday * * * shall serve or execute any writ, process, warrant, order or judgment except in criminal cases, or for a breach of the peace, or when the defendant is about leaving the county," etc.

The return recites that the defendant is a nonresident. It is argued that the provisions of sections 1785, supra, authorizing the service of process on Sunday where the defendant "is about leaving the county," applies only to service upon residents of this state. We are not prepared to say that appellant is correct in this contention, but we find it unnecessary to pass judgment upon the matter.

The return is assailed as being wholly insufficient because of the failure of the sheriff to therein state the place where such service was had. Section 1763, Rev. Stat. 1909, provides that :

"Every officer to whom any writ shall be delivered to be executed shall make return thereof in writing of the time, place and manner of such service of such writ, and shall sign his name to such return" (italics ours).

It will be observed that this writ recites the time and manner of service, but it does not expressly state the place where such service was had. It does not affirmatively show that the writ was served upon the defendant in Pike county, Mo. It may be that the language employed in the return can properly be said to raise an' inference or presumption, if such were allowable when dealing with a return of process, that service was had within the jurisdiction of the officer, viz. Pike county, Mo. But it has frequently been held that :

"The return cannot be aided by presumptions or intendments that nothing can be presumed in favor of the return, or read into it by intendment, that the return must show on its face that every requisite of the statute has been complied with." Regent Realty Co. v....