O'Neal v. Messick ( 1919 )

Boyce, J:

The statute requires that summons shall be served at least four days before the day of appearance, unless it be returnable forthwith; also:

“The service and manner of service shall be stated in the return * * * with the date of such service; and a judgment by default shall not be rendered until this return is verified by the constable’s affidavit in writing.” Rev. Code 1915 § 4008. “If a defendant, being duly summoned, donot appear * * * the justice * * * may hear the allegations and proofs of the plaintiff in the defendent’s absence, and give judgment against him by default. * * * Id. § 4011.

[1] The appearance of James O’Neal, so far as concerns himself, cured any defect in the service of summons and return made by the constable. It may be said, after due process upon a defendant and his appearance, the justice may enter judgment against him on his confession, and such confession will operate as a release of error. Dickinson v. Horn, 3 Har. 496; Runyan v. Dickenson, 4 Har. 243; Gum v. Adams, 9 Houst. 200, 31 Atl. 895.

[2] But in an action pending against two defendants, one of them cannot in the absence of the other, without, at least, proper authority, confess judgment against both. So that the judgment entered by the justice in this case without the allegations and proofs of the plaintiff against Sallie O’Neal, is of no force.

[3] Again, the judgment entered was in respect to Sallie O’Neal a judgment by default, without the constable stating in his return the date of service upon her, and without the return being verified by his affidavit in writing and without the justice hearing the allegations and proofs of the' plaintiff. In view of these errors, as well as the fact already shown that the judgment was entered against both defendants on the confession of one of them only it must be reversed. Patterson v. Jarmon, 5 Pennewill, 471, 62 Atl. 8.

Judgment reversed.