Campbell v. Harper , 3 Wash. C. C. 356 ( 1818 )

WASHINGTON, Circuit Justice.

Although this judgment may have been entered upon an insufficient return of the service of the declaration, yet, if the defendants acknowledge, in their affidavit, enough to supply omissions, and to cure defects in the return, the court will not set aside the judgment. But this is not done in the present case. The return of service by the deputy marshal states, that, on a particular day, he served the ejectment on Harper and Conway, by showing the original to Harper, and by delivering a copy at the dwelling house of Harper and Conway, on the premises, said Conway being absent, and the copy left in the presence of his wife.

This return is clearly defective in not stating that a copy of the declaration was delivered to Harper, and that another copy was delivered to the wife of Conway, and that the notice was read, or explained severally to them. It is also defective in not stating, that Harper and Conway were tenants in possession. It is true, that where both defendants inhabit the same house, it is sufficient to deliver one copy of the declaration; but it does not appear, with certainty, that Harper and Conway resided together; nor are any of the above objections removed by the affidavit of the defendants; which merely states, that the ejectment was served on Conway only, and not on Harper, who was then in possession of one half of the premises. But it does not appear from this, that the two defendants resided together, or that Conway was in possession of any part of the premises. The court will never grant a judgment by default in ejectment, or permit it to be carried into execution, where it has been improvidently obtained; unless it appears, that the tenants in possession had full notice of the suit, and of what they are required by the notice to do.²

] There is no weight in any other of the rea-i sons assigned for setting aside this judgment. An affidavit of the service of the declaration is not necessary, where the duty is performed by a sworn officer of this court. It is perfectly regular, to take a rule upon the tenants in possession to appear on some day during the court to which the declaration is returned, and to sign judgment, if such appearance be not entered within the period prescribed; reserving, however, to the tenants in possession, the right to set aside the judgment, if an appearance be entered after-wards, and during the same time when the session of the court continues beyond the period mentioned in the rule. This rule need not be served on the tenant in possession, as it is his own fault if he does not cause his appearance to be entered during the court to which the notice refers.

Buie must be made absolute.

2 If the plaintiff’s attorney would always subjoin to the notice the form of the return, where it is to be made by the marshal, or one of his officers; or of the affidavit, when the declaration is served by any other person; there would seldom, if ever, be occasion for objections of this kind.