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atively appear by the return whether the party making the return was a regularly appointed deputy or not, it will be presumed that he was so appointed.'

It is held that, where the return is made in the name of a special deputy instead of in the name of the principal, showing personal service, the defect is only an irregularity and can not be taken advantage of by a stranger to the judgment or by collateral attack. But there are cases holding to the contrary. It being held that a return made in the name of the deputy is a nullity.3

Ordinarily, the time when a return is made, if before judgment, is not material. But it has been held that where a writ issuing out of a court of inferior jurisdiction is required to be returned at an hour named in the statute, a return made at a later hour will not give jurisdiction." If, however, the jurisdiction does not depend upon the return, but upon the service, and a defective return may be amended, as we have shown, it is quite clear that an entire failure to make the necessary proof may be supplied even after judgment.5

As to the effect of the officer's return, whether conclusive or not, the authorities are so conflicting as to render it impossible to lay down any positive rule on the subject. The question has been considered in another place.

It may be said, in this connection, however, that the evident tendency of the later decisions is to allow the return to be impeached by other evidence even as between the parties to the action."

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1 Martin v. Gray, 142 U. S. 236; 12 Sup. Ct. Rep. 186.

2 Hill v. Gordon, 45 Fed. Rep. 276.

Rowley v. Howard, 23 Cal. 402.

Brown v. Carroll, 16 R. I. 604; 18 Atl. Rep. 283.

Ante, sec. 38; Britton v. Larson, 23 Neb. 806; 37 N. W. Rep. 681.

6 Ante, sec. 22, p. 116.

Ante, sec. 22, p. 116; Crosby v. Farmer, 39 Minn. 305; 40 N. W. Rep. 71; Carr v. Commercial Bank, 16 Wis. 50; Wheeler & Wilson Mfg. Co. v. McLaughlin, 8 N. Y. Sup. 95; Grady v. Gosling, 48 Ohio St. 665; 29 N. E. Rep. 768; McComb r. Council Bluffs Ins. Co., 48 N. W. Rep. 1038.

If the proof of service is made by a private individual it may be contradicted.1

Defects in the return are not grounds for quashing the writ.2

As has been shown elsewhere it will be presumed in favor of the jurisdiction of a court of general jurisdiction that process has been properly served. Therefore a want of proof of service is often immaterial. But where proof of service is made and shows an insufficient service it will not be presumed, in aid of the jurisdiction, that something different was done. For this reason a defective return or affidavit of service is often worse than none at all. So a defect in the proof of service, or an entire failure to make such proof, is often supplied by a recital in the record that the defendant has been served." And where a return is made of a summons, containing the names of several defendants, that a part have been served and others not found, and is silent as to the other defendants, service out of the county will not be presumed."

It will be seen from what has been said that in all of the cases the return, or other proof of service, has been required to show that the statute has been fully complied with in making the service. In many of them the most literal exactness has been required, some of the cases pronouncing against the sufficiency of the return on verbal inaccuracies that seem to be too trivial and immaterial for serious consideration. In this respect some of the cases seem to go to the extreme. This results, no doubt, from the extreme care exercised by the courts to prevent an adjudication against a party without the opportunity to be heard. For this reason greater strictness, if possible, has

1 Detroit Free Press Co. r. Bragg, 78 Mich. 650; 44 N. W. Rep. 149. 2 Virginia F. & M. Ins. Co. v. Vaughan, 88 Va. 832; 14 S. E. Rep. 754. 3 Ante, sec. 25.

163.

Ante, sec. 25; Godfrey v. Valentine, 39 Minn. 336; 40 N. W. Rep.

Ante, secs. 23, 25; post, sec. 40; Ford r. Delta, etc., Co., 43 Fed. Rep.

Dickison v. Dickison, 124 Ill. 483; 16 N. E. Rep. 861.

been shown in cases of constructive service. And out of the distinction between actual and constructive notice has grown up the doctrine, maintained in some of the cases and denied in others, that a defective and insufficient personal service will uphold a judgment against a collateral attack, or, in other words, will vest the court with jurisdiction, while, in case of constructive service, it will not; and that statutes authorizing constructive service must be strictly, and those authorizing personal service only substantially, complied with. These are distinctions that have been wholly repudiated by many of the later cases and with reason. The presumptions in favor of the jurisdiction of a court of general powers should be precisely the same whether it obtains its jurisdiction by one kind of service or another.'

However this may be, and it must be regarded as an open question about which the authorities wholly disagree, it must be remembered that in the cases cited in this section the questions raised as to the sufficiency of the proof of service were mainly cases in which the question arose on appeal, or where the attack was made by some other direct proceeding, and not collaterally. And no doubt, in many of the cases, if the question had been presented collaterally, the service, as shown by the proof, would have been upheld. In other words, it would have been held that the service was defective, or irregular, but not void.

The effect of defective service and the waiver of defects will be considered in another place.2

In case of an appeal, or other direct attack, the question is not, necessarily, whether the court had jurisdiction, but whether the court below erred in holding the return of service to be sufficient. It must be borne in mind, also, that the question as to the sufficiency of the return is not, necessarily, a jurisdictional question. A court, as we have shown, obtains jurisdiction by the service and not by the proof of it. In many cases, of course, the jurisdiction of the court is defeated or not upheld after it is acquired, be1Ante, sec. 25, p. 159. * Post, secs. 40, 41.

cause the proof of the fact which gave it jurisdiction is not made. But if the jurisdiction actually exists it should never be allowed to fail because the formal proof of it is not sufficient, if the judgment plaintiff is able and offers to supply the necessary proof. In many of the cases, as has been shown in this section, the right to supply the necessary proof has been liberally accorded, but there are other cases in which, apparently, the service and the evidence proving or attempting to prove it are treated as one and the same thing.

40. DEFECTIVE PROCESS AND SERVICE. This subject has been anticipated, to a great extent, in earlier sections.' It is not the purpose of this section to show what is defective service, as distinguished from void, or no service. That has already been done. But to point out the effect of defective service.

The distinction between defective and void service is important. The former confers jurisdiction, the latter does not.3 Defective process or service, therefore, is not subject to collateral attack, but void process or service is always open to attack, collateral or direct, unless service, or proof of it, has been waived. The subject of waiver will be considered in another section.5

A distinction is very properly made between a defect that affects the notice of the time and place of the hearing and other defects, as, for example, an erroneous statement of the amount of the plaintiff's demand.o

1 Ante, secs. 13, 15, 23, 25, 32, 33, 36, 37, 38, 39.

2 Ante, secs. 32, 33, 36, 37, 38, 39.

3 Ante, secs. 13, 22, 23, 36; Quarl ». Abbett, 102 Ind. 233; 1 N. E. Rep. 476; Elliott App. Pro., secs. 331, 332.

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* Ante, sec. 22; post, sec. 41; Black on Judg., secs. 223, 224; Schneitman r. Noble, 75 Ia. 120; 39 N. W. Rep. 224; Baker v. Swift, 87 Ala. 530; 6 Sou. Rep. 153; Parker v. Wardner, 13 Pac. Rep. 172; Lindsay ". Tansley, 18 N. Y. Sup. 317; Webster v. Daniel, 14 S. W. Rep. 550; Byers v. Fowler, 12 Ark. 218; 54 Am. Dec. 271; Bank of Missouri v. Matson, 26 Mo. 243; 72 Am. Dec. 208; Pursley v. Hayes, 22 Ia. 11; 92 Am. Dec. 350. 5 Post, sec. 41.

Richmond & D. R. Co. v. Rudd, 88 Va. 648; 14 S. E. Rep. 361.

If the defect is in the proof of service, and not in the service, the proof may be amended so as to show the facts.' And where the defect is in the writ, and service of it has been made on the proper person, the writ may, in some cases, be amended so as to conform to the complaint, as in case of misnomer. Even in case of a direct attack, for defects in the service, the objection must be made within a reasonable time, or the relief will be denied.3

It has been held, however, that the proof of service, where judgment has been taken by default, can not be made after an appeal has been taken. This may be true, so far as the right to a reversal of the case is concerned, but the statement in the opinion in the case cited, that the "defect was jurisdictional and could not be cured," can not be maintained. As has been shown elsewhere in this work, if the service is properly made, jurisdiction at once attaches, and defective proof of the service may be amended. It is not the proof of service that is jurisdictional, but the service itself."

In some of the cases, a distinction is made between actual and constructive service as to the effect of defective service or proof of service, it being held that, in case of constructive service, the statute must be strictly complied with; that nothing less than such a compliance with the statute will give the court jurisdiction, and that no presumption will be indulged in favor of the jurisdiction of the court attempted to be obtained by constructive notice. But, as we have attempted to show elsewhere, there is really no sufficient ground for such a distinction, and the later cases show a decided inclination to put actual and constructive service on the same footing in this respect.

1 Ante, sec. 39; Commercial Union Assur. Co. v. Everhart, 88 Va. 952; 14 S. E. Rep. 836; Mills v. Howland, 49 N. W. Rep. 413; Turner v. Holden, 109 N. C. 182; 13 S. E. Rep. 731; Shufeldt v. Barlass, 33 Neb. 785; 51 N. W. Rep. 134; Beutell v. Oliver, 15 S. E. Rep. 307.

2 Gulf C. & S. F. Ry. Co. v. James, 48 Fed. Rep. 148.

3 Post, sec. 41; Patmor v. Rombauer, 41 Kan. 295; 21 Pac. Rep. 284.

* Hall v. Graham, 49 Wis. 553; 5 N. W. Rep. 943.

5 Ante, secs. 38, 39.

6 Ante, sec. 25, p. 159; sec. 38, p. 282; Pennoyer v. Neff, 95 U. S. 714,

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