Taylor v. Helter , 198 Mo. App. 643 ( 1918 )

ALLEN, J.

Plaintiff instituted this action in the circuit court of Pike county seeking to recover the sum of $2490 as damages, alleged to have been sustained by him by reason of false and fraudulent representations charged to have been made by the defendant in the course of a transaction whereby plaintiff exchanged certain real estate for real estate belonging to the defendant. The defendant was served with a writ of summons on November 15, 1914, that day being Sunday. The sheriff’s return, endorsed upon the writ, is as follows:

“I hereby certify that I served the within writ and process on the within named defendant, George W. Helter, by delivering to him the said George W. Helter a true copy of the petition and writ. All done on the 15th day of November, A. D. 1914. I further certify that the defendant, George W. Helter, is a nonresident of this State, and that at the time of the service aforesaid was about leaving the County and the State.”

At the return term of the writ, to-wit, on December 15,1914, an interlocutory judgment by default was entered against defendant. Thereafter, and prior to the entry of final judgment, the defendant, .limiting his appearance for that purpose only, moved the court to set aside the default, and grant him a reasonable time in which to plead. This motion the court overruled. Thereafter, at the same term, the court entered final judgment in favor of plaintiff for the full sum prayed for in his petition. After unavailing motions for a new trial and in arrest, the defendant prosecuted his appeal to this court.

In the view which we take of the case, as it reaches ns, it is unnecessary to look farther than the return of the sheriff, which is assailed as being insufficient to vest the court with jurisdiction to render personal judgment against the defendant. As appears by the return, the service was had on Sunday, and the officer serving the writ has undertaken to bring the service within the provision of section 1785, Revised Statutes 1909, which provides that “No person, on Sunday . . . shall serve or execute any writ, process, warrant, order or judgment except in criminal cases, • or for a breach of the peace or when the defendant is about leaving the county,” etc. The return recites that the 'defendant is a nonresident. It is argued that the provisions of section 1785, supra, authorizing the service of process on Sunday where the defendant “is áboút leaving the county,” applies only to service upon residents of this State. We are not prepared to say that appellant is correct in this contention, but we find it unnecessary to pass judgment upon the matter.

The return is assailed as being wholly insufficient because of the failure of the sheriff to therein state the place where such service was had. Section 1763, Revised Statutes 190'9, provides that: “Every officer to whom any writ shall be delivered to be executed shall make return thereof in writing of the time, place and manner of such service of such writ, and shall sign his name to such return” (italics ours). It will be observed that this writ recites the time and manner of service; but it does not expressly state the place where such service was had. It does not affirmatively show that the writ was served upon the defendant in Pike County, Missouri. It may be that the language employed in the return can properly be said to raise an inference or presumption, if such were allowable when dealing with a return of process, that service was had within the jurisdiction of the officer, viz: Pike County, Missouri. But it has frequently been held that “the return cannot be aided by presumptions or intendments, that nothing can be presumed in favor of the return, or read into it by intendment; that the return must show on its face that every requisite of the statute has been complied with.” [Regent Realty Co. v. Paving Co., 112 Mo. App. 271, l. c. 279, and cases there cited, 86 S. W. 880; Mercantile & Manufacturing Co. v. Insurance Co., 128 Mo. App. 129, 106 S. W. 573.] It has been said that everything may be inferred against an officer’s return which its departure from the statutory requirements will warrant. [Madison County Bank v. Suman, 79 Mo. 527; Holtschneider v. Railroad, 107 Mo. App. 381, 81 S. W. 489.]

We regard the return before us as insufficient. The recitals of the return could be true even though service was had upon the defendant in another county or beyond the limits of the State. [Madison County Bank v. Suman, supra, l. c. 530.] It is true that this return bears a caption stating the style of the cause and the words “State of Missouri, County of Pike, S. S.” Primarily this caption is to be taken as showing the venue of the return and not the place of service. It has been held, howevér, that in the absence of any contrary recital in the' body of the return, such a caption may afford a sufficient showing that the service was made in the county and State therein mentioned. [Davis v. Richmond, 35 Vt. 419.] But in view of the fact that our statute specifically com mands that the officer state in his return the place of service, we think that it would not be proper to hold that this return, failing as it does to comply with the statute, is to be aided by presumption or intendment appearing from the caption prefixed thereto. The return shows defendant to be a nonresident of the State. It is essential, of course, that service be had upon him within the limits of this State in order to confer jurisdiction over his person; and the statute in explicit terms requires that the officer recite in his return the place of such service, in order that it may affirmatively appear that such service was had. The return avoids all reference to the place of service.

In Crowley v. Wallace, 12 Mo. 142, l. c. 147, it was held that the failure of a constable to state in his return that the writ was served in the township, did not vitiate all of the proceedings based thereupon so that they could be pronounced void; but, as stated in the opinion, this was upon collateral attack and there was no statute prescribing the form of the return.

The recitals of the return cannot be aided or enlarged by extrinsic evidence (Madison County Bank v. Suman, supra; Realty Co. v. Paving Co., supra); but upon proper application the trial court may allow an amendment of the return (See Mercantile & Manufacturing Co. v. Insurance Co., supra.

It- is unnecessary to discuss the other features of the case. The judgment will be reversed and the cause remanded with leave to plaintiff to . apply to the circuit court for an amendment of the return, if so advised; defendant to have leave to plead to the petition, if the return shall be so amended as to comply with the statute. It is so ordered.

Reynolds, P. J., and Becker, J., concur.