Summary
In Angell v. Bowler, 3 R.I. 77, it was decided that an officer's return on an original writ cannot be controverted by the defendant except as provided by statute; and in Estes v. Cooke, 12 R.I. 6, it was decided that the return on an execution was conclusive on the parties in a subsequent action.
Summary of this case from Barrows v. National Rubber Co.Opinion
SEPTEMBER TERM, 1854.
An officer's return upon a writ cannot be controverted incidentally by motion, or plea, except in cases specially provided for by statute.
THE writ in this action was a writ of summons. The defendant appeared solely for the purpose of filing his motion to dismiss the action for want of service of the writ. He alleged that the service was pretendedly made by leaving an attested copy of the writ at his last and usual place of abode, and produced a copy of a writ in favor of the plaintiffs, returnable at the present term of the court, signed Amasa S. Westcott, clerk. He denied the leaving of any other copy of any writ at his last and usual place of abode in favor of the plaintiffs. These facts were verified by affidavit.
The original writ on file in said action, is signed by Thomas S. Anthony, who was clerk at the time of the issuing of the same. The officer's return on the back of the same was, that he summoned the defendant, by leaving a true and attested copy of the writ at his last and usual place of abode.
Currey and W. Sayles for plaintiff.
T.A. Jenckes for defendant.
The officer's return is conclusive, and cannot be controverted incidentally by motion or plea, except in cases specially provided for by statute. Errors apparent on the record can be taken advantage of by motion as well as plea. But it never has been permitted for a defendant to falsify the record by his affidavit, and then take advantage of an error thus made apparent.
Motion overruled.