Williams v. Schmidt

• Decision Date: 07 February 1887
• Citation: 13 P. 305,14 Or. 470
• Parties: WILLIAMS v. SCHMIDT.
• Court: Oregon Supreme Court

13 P. 305

14 Or. 470

WILLIAMS v. SCHMIDT.

Supreme Court of Oregon

February 7, 1887

L.B Cox, for appellant.

George H. Williams, for respondent.

LORD C.J.

The action was for the recovery of money; commenced in a justice's court, and resulted, after trial, in a judgment in favor of the plaintiff and respondent. The defendant appealed to the circuit court, but his appeal was dismissed whereupon he appealed to this court. The ground of dismissal was that the notice of appeal was served by the defendant Schmidt. This is the only assignment of error which we deem it necessary to consider.

Section 517 provides that "the service, or deposit in the post-office, when served by mail, may be made by any person other than the party himself. The proof of service shall be the same as the proof of service of a summons," etc. Code, 215. The service of a summons in a justice's court must be made by the sheriff of the county, or his deputy, or a constable of the precinct, or marshal of the town or city in which the court is holden. Code, p. 463, c. 3,§ 9. In the circuit or county court, the summons is served by the sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him, or by the court or judge thereof in which the action is commenced. Code, § 53. The proof of the service of summons, etc., (1) if by the sheriff or his deputy, is the certificate of such sheriff or deputy; or, (2) if by any other person, his affidavit thereof, etc. Code, § 60, subd. 1, § 2.

The defendant, who served the notice, made proof of such service by his affidavit. But the proof of such service must be made by some one authorized by law to make the service. In none of the provisions cited is the party to the action--plaintiff or defendant--enumerated or authorized to serve the summons. The sheriff or court may, under the provisions of section 53, supra, appoint specially a person to serve the summons, and, when performed by him, the proof of such service would be by his affidavit. But there is no such provision in reference to the justice's court; and if we should concede the court might in a proper case appoint specially a person for this purpose, it would avail nothing here, as there is no such case for our consideration. Finding, then, that there is no case in which a party to an action, whether plaintiff or defendant, is authorized or can serve a summons, it follows as a consequence that there can be no proof of service by affidavit or otherwise by such party. Now, the service of a notice of appeal is designed to serve the same purpose as the service of a summons. In either case, the object is to acquire jurisdiction of the parties which is accomplished when the summons or notice of appeal is properly served. And, unless expressly provided by statute, the reason which requires some person other than the party himself to serve the summons applies with equal force to the service of a notice of appeal. Now, the proof of service required by section 517, supra, is the same as the proof of service of a summons; that is, when made by the officer, his...