Reed v. Circuit Judge ( 1892 )

To compel the vacation of a judgment in ejectment.

Granted December 2, 1892, with costs.

One Lashbrook, upon conveyance from one of the heirs of relator’s husband, commenced ejectment, by filing declaration against relator, who was and still is in possession of a homestead parcel in which she claimed dower. He subsequently filed his own affidavit of service in which he stated that “he served a true copy of a declaration in ejectment, of which the within is a true copy, on,” etc., “by handing it to -her in her house,” etc.

Relator consulted an attorney, and was advised that there had been no valid service, and to ignore the pretended service. Defaults were entered, and on October 20, 1886, plaintiff had judgment.

In February, 1890, the judgment entry was found defective, in that the land was not properly described, and upon plaintiff’s application, without notice to relator, a new judgment was entered as of the date of the former judgment. In March, 1890, plaintiff in the ejectment suit filed a bill for partition against relator and others, and in December, 1890, relator moved to vacate the judgment in the ejectment case.

Relator contended (1) that the return did not show service of a rule to plead; (2) that the pretended service was invalid, because made hy plaintiff in person; (3) that How., Sec. 7661 is not applicable because this is not a case of mere irregularity, but of lack of jurisdiction, and (4) that if the statute is held applicable, the motion was made within one year after any judgment was entered affecting relator’s interest in the land occupied by her. Citing Morton vs. Crane, 39 M., 528; Bush vs. Meachem, 53 M., 574.

Respondent contended that the service by plaintiff was an irregularity only, Parmalee vs. Loomis, 24 M., 242; Granger vs. Superior Court Judge, 44 M., 384 (715); Jenness vs. Circuit Judge, 42 M., 471 (781); Steere vs. Vanderberg, 67 M., 530; Rasch vs. Moore, 57 M., 56; Union Mut. Ins. Co. vs. Page, 61 M., 75; Munn vs. Haynes, 46 M., 142; Arnold vs. Nye, 23 M., 297.