Stewart v. Stringer

Wagner, Judge,

delivered the opinion of the court.

This appeal is prosecuted from a judgment of the St. Charles Circuit Court overruling a motion to set aside a prior judgment rendered therein. It appears from the record that at the March term, 1862, of the said court the plaintiffs recovered judgment on a promissory note against the defendants William Stringer, Elizabeth Stringer, and Joseph W. Ruenzi. There was no appearance to the action on the part of the defendants, and judgment was taken by default. At the November term, 1865, of the court, upon due notice given to the plaintiffs, Ruenzi presented his motion to set aside the judgment, and assigned for reasons that the judgment was rendered on a note executed before he had arrived at the age of maturity and while he was yet a minor, and that the suit was brought before he was twenty-one years old ; that the return on the writ in said cause showed service on him by delivering a copy to a white member of his family at his place of abode, when in fact he had no family, and at the time of the so-called service he was not a resident of St. Charles county, and had no information, knowledge or notice of the said suit or judgment until within a few weeks past, and never answered or appeared in said cause.

Subsequent to the taking of the appeal in this case, the sheriff appeared in the Circuit Court and amended his return, making it conform to the fact set out in the motion, that Ruenzi was not found in St. Charles county, and we are now asked to permit a transcript of this amended return to *404 be used and taken as a part o£ the record in this court. This we cannot do. After an appeal is prayed for and- allowed, the record cannot be changed or altered by either party: an entry cannot be filed nunc pro tunc, and no addition can be made to it. The court below has ceased to have any jurisdiction over it—Ladd et als. v. Couzins, 35 Mo. 513 .

The only question deemed material in the case is as to the sufficiency of the sheriff’s return. The courts of some of the States have held that a sheriff’s return is merely prima facie evidence of the facts therein stated; but the law is firmly settled in this State that a defendant cannot controvert the truth of a sheriff’s return. If the return of a sheriff to process is regular on its face, it is conclusive upon the parties to the suit, and the remedy for the party injured is an action against the sheriff for a false return—Hallowell v. Page, 24 Mo. 590 ; Delinger v. Higgins, 26 Mo. 180 .

The return here is as follows: “ Executed the within writ and petition on the within named defendant William Stringer, by delivering to him a true copy of the within writ and petition; and also did, on the same day and at the same time, leave a copy of the writ for Elizabeth Stringer and Joseph Ruenzi, at their place of abode, with a free white person, a member of the family; of the two other within named defendants, a free white person over the age of fifteen years old, in St. Charles county, Missouri, on the 13th day of February, 1862. — Charles B. Branham, sheriff.”

The revised-statute of 1855 (R. C. p. 1223, § 7) provides that service may be made, where there are several defendants, by delivering to the defendant who shall be first summoned a copy of the petition and writ, and to such as shall be subsequently summoned a copy of the writ; or by leaving such copy at the usual place of abode of the defendant with some white person of his family over the age of fifteen years. The service and return were both plainly irregular and defective. The writ purports to have been delivered, according to the return, to one person, a white member of the family of both defendants at one and the same time. *405 Now a person cannot be a- member of two families at tbe same time, and it appears that but one writ was left for the two defendants, when the statute contemplates that a separate writ should be left for each of the defendants last served.

When the statute provides for constructive service, the terms and conditions of such' service must be complied with. Such being the fact, and there being nothing to show that Ruenzi was ever served with process, and having had no day in court, we think his motion should have been entertained.

The judgment will be reversed, and the cause remanded.

Judge Holmes concurs. Judge Fagg absent.