Johnson v. Murphy , 42 Vt. 645 ( 1870 )

Heard at the January term, 1869.

The opinion of the court was delivered by

Pierpoint, C. J.

It is apparent from the bill of exceptions . that the court below directed a verdict for the defendant on the ground that the determination of the magistrate, as to the notice to the defendant in the suit then pending before him, and in which the judgment was rendered, that is now sought to be set aside, is conclusive upon the defendant in that suit, (the plaintiff in this,) and precludes any inquiry in this case as to whether the plaintiff here had any notice in fact of the pendency of that suit. To determine whether the county court was right in this, it becomes necessary to look into the record of the proceeding before the justice, to see what he actually decided in respect to the notice. On examining the record it does not appear that the defendant in that suit had any notice of the service of the writ upon him, and of the pendency of the suit, except as appears from the officer’s return; in other words that he had just such notice as the officer in his return states that he gave him. The officer in his return says, that on the day that, he served the writ, “ he gave the defendant personal notice of the suit, and the time of court, and the place where to. appear.”

It is conceded that this notice is not a sendee of the writ, in any of the modes known to the law, and for such a purpose is of no avail. It is also conceded, that if this notice was given by the officer before the writ was served by leaving a copy at the defendant’s place- of abode, it would have no effect upon the plaintiff’s right to a judgment upon the return day, because it would not be notice that a writ had been served upon him in any form that could result in a judgment against him. If the officer had given notice that he had served the writ by leaving a copy, with notice - of the time and place of hearing and the name of the .plaintiff, that might have been sufficient, but neither the return of the officer, his testimony on trial, or the record of the magistrate show any such state of facts.

The finding of the magistrate is consistent with the fact that the interview, between^the officer and the defendant in that- suit, took place prior to the service of the writ, and that the said defendant remained in entire ignorance of the fact that the writ had been served until long after judgment had been obtained against him.

The term “ pendency of the suit ” can have no technical signi- ' fication in the connection in which it is used, as the whole record in this respect is based upon the officer’s return.

The magistrate, as appears by the record, goes further, and finds that the notice was given by the officer who served the writ “ while he had said writ in his hands for service,” not after he had served it; thus indicating, so far as it tended to show anything as to the time of notice, that it was before service was in fact made.

As the record upon its face does not show that said defendant had notice of the suit after the writ was served upon him, we cannot regard it as conclusive upon him in this respect.

What took place between the officer and the defendant was much better calculated to mislead him than to give bim information upon which he would be expected to act. As the defendant was in the act of leaving the state, and that known to the officer and spoken of at the time, he (the defendant) would naturally suppose that if the writ was to be served it would be served upon him then, and, as it was not, that the proceeding was abandoned.

We have been speaking of the facts stated in the officer’s return. as to notice, as though they properly constituted a part of the officer’s return and had some additional force in consequence of having been placed there, but we do not so regard it. They constituted no part of the officer’s return, and have no binding force or validity, and putting them there does not make the return evidence of their truth for any purpose. Still if the magistrate receives the return as evidence, and the record shows that he found the requisite facts in respect to notice, perhaps the court in a proceeding like this could not go back of the record to inquire into the character of the evidence on which the finding was based, but we have no occasion to pass upon that question, as both the return and the finding based thereon are deficient in the most essential requisite necessary to make the judgment conclusive, that is, that the notice .was given after the commencement of the suit, by service of process on the party.

The question whether the notice was in fact given before or after the writ was served, the record being consistent with either hypothesis, is a matter to be determined by the jury, and should have been submitted to them.

Again we think the evidence in this case has a tendency to show that the defendant in this proceeding did not act in perfect good faith in obtaining that judgment; all the circumstances, preliminary to and attending the service and the notice, are at best calculated to excite a suspicion that the object was to have the writ served at a time when it was too late for him to get the copy left at his place of abode, and at the same time let him have just notice enough, not to have him understand that he is sued, but to enable the plaintiff to get a judgment on the return day by default without being obliged to give the recognizance required by the statute to protect the defendant against an unjust judgment. Of course we do not undertake to say that the fact was so, or that the evidence was sufficient to satisfy the jury upon the subject. It is enough that the evidence has a tendency to prove it, and the weight of the evidence is for the jury, and upon that point the finding of the magistrate is of no force whatever to preclude an inquiry, as the inquiry is based upon the theory that the judgment is void by reason of the misconduct of the party. We think that upon this point also the case should have been submitted to the j^y.

The judgment of the county court is reversed and the case remanded.