that it appeared to the court that the defendant had been duly served with process was satisfactory proof that the defendant did make the acceptance.54

§ 134. Amendment of return.

per

Courts have power to permit officers to amend their returns to both mesne and final process, and the power is exercised liberally, in the interests of justice, when the rights of third sons are not to be affected by the amendment.55 The power should be exercised with great caution if the title to property is to be affected.56 In the exercise of a sound discretion, courts have allowed officers to amend their returns, according to the real facts, after the lapse of years, and, when there is no doubt about the facts, such amendments have been allowed after the officer's term had expired.57 An amendment relates back to the time of the original return, where the rights of innocent third parties are not affected.58 The service of a subpoena upon a

54 Banks v. Banks, 31 Ill. 162. See, also, Lewis v. State Bank, 4 Ark. 443; Metz v. Bremond, 13 Tex. 394.

55 Crocker, Sher. § 43; Murfree, Sher. (2d Ed.) §§ 875, 878; Phoenix Ins. Co. v. Wulf, 1 Fed. 775; Berry v. Griffith, 2 Har. & G. (Md.) 337, 18 Am. Dec. 309; Tewalt v. Irwin, 164 Ill. 592, 46 N. E. 13; Dinsmore v. Westcott, 25 N. J. Eq. 302; Lake's Petition, 15 R. I. 628, 10 Atl. 653; Howell v. Albany City Ins. Co., 62 Ill. 50.

56 Hobart v. Bennett, 77 Me. 401.

57 Phoenix Ins. Co. v. Wulf, 1 Fed. 775, citing Adams v. Robinson, 1 Pick. (Mass.) 461; People v. Ames, 35 N. Y. 482; County of La Salle v. Milligan, 143 Ill. 345, 32 N. E. 196; Lake's Petition, 15 R. I. 628, 10 Atl. 653. It is said that, after a cause has been removed to the federal court, the sheriff cannot amend his return on the summons. Beach, Mod. Eq. Pr. § 188, citing Tallman v. Baltimore & O. R. Co., 45 Fed. 156; Hawkins v. Peirce, 79 Fed. 452. But see Richmond v. Brookings, 48 Fed. 241; Stalker v. Pullman's Palace Car Co., 81 Fed. 989. Where the officer has, since service, become disqualified by interest, he cannot amend the return. O'Conner v. Wilson, 57 Ill. 226. A sheriff cannot amend a return by his deceased deputy when he was not personally present at the service of the writ, and cognizant of the manner in which it was made, and there are no sufficient contemporaneous memoranda by the deputy by which the amendment can be made. O'Conner v. Wilson, 57 Ill. 226. But see Avery v. Bowman, 39 N. H. 393.

58 Lake's Petition, 15 R. I. 628, 10 Atl. 653; Shenandoah Valley R.

defendant beyond the territorial jurisdiction of the court is void, but the defendant may voluntarily appear, or accept such service, and then a judgment in personam can be rendered against him.59

135. Effect of return.

The rule in England, at the common law, was that the sheriff's return was conclusive, and could not be disputed, and the defendant's only remedy was by an action against the sheriff for a false return. It is said that in the state courts of America, while some question has been made as to the conclusiveness of the sheriff's return, it has generally been held that it is only prima facie true, and that the truth or falsity of the return may be determined upon motion, supported by affidavit, for the reason that in America there are so many different codes of practice, and so many kinds of substituted service, that the English rule would be unjust and impracticable, and that, upon examination of a great many American cases, it is believed the general rule in America is as follows: That the sheriff's return stands, in the first instance, as the affidavit of the sheriff, but is subject to be disputed by affidavits on the part of the defendant showing to the satisfaction of the court, upon motion to quash, that the return is not true in point of fact, or is insufficient in law. An amendment is not allowable at a subsequent term

60

Co. v. Ashby's Trustees, 86 Va. 232, 9 S. E. 1003; Woodward v. Harbin, 4 Ala. 534; Capehart v. Cunningham, 12 W. Va. 750; 4 Minor, Inst. Com. & St. Law (2d Ed.) 937 (839); Stotz v. Collins, 83 Va. 423, 2 S. E. 737; Spellmyer v. Gaff, 112 Ill. 29.

59 Dunn v. Dunn, 4 Paige (N. Y.) 425; Keeler v. Keeler, 24 Wis. 522. See Vermont Farm Machine Co. v. Marble, 20 Fed. 117. This doctrine has, however, been questioned. See Weatherbee v. Weatherbee, 20 Wis. 526; Riker v. Vaughan, 23 S. C. 187.

60 Wall v. Chesapeake & O. Ry. Co., 95 Fed. 398, citing Carr v. Commercial Bank of Racine, 16 Wis. 50; Bond v. Wilson, 8 Kan. 228; Crosby v. Farmer, 39 Minn. 305, 40 N. W. 71; Walker v. Lutz, 14 Neb. 274, 15 N. W. 352; Wendell v. Mugridge, 19 N. H. 109; Stout v. Sioux City & P. R. Co., 8 Fed. 794; Wallis v. Lott, 15 How. Pr. (N. Y.) 567; Watson v. Watson, 6 Conn. 334; Rowe v. Table Mountain Water Co., 10 Cal. 442. In America there is so much diversity of judicial opinion on this question that it is impossible to lay down any general rule on

of court to the one at which the decree was rendered, as a matter of course, without notice to the parties alleged to have been regularly served, or those whose rights will be directly affected thereby. Lapse of time is not a bar to an amendment of a return, but merely a circumstance to be considered with others bearing on the question of laches, or generally as a guide to the court in the exercise of its discretion.61 Such return may be amended after the case has been removed from the trial court to the appellate court by a writ of error, and that writ has been made a supersedeas, or after appeal.62 But at no time can it be altered to make it conform to facts that did not arise until after the return was made, even upon leave.63 An amendment of a return can be permitted only where it comes in affirmance of the judgment, not where it would cause a reversal.64

the subject. The following cases treat at length of the doctrine obtaining in many of the jurisdictions: Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1055; Stewart v. Stewart, 27 W. Va. 167; Tillman v. Davis, 28 Ga. 495; Ryan v. Lander, 89 Ill. 554; Hunter v. Stoneburner, 92 Ill. 75; Trimble v. Erie Electric Motor Co., 89 Fed. 51; Ex parte St. Louis, I. M. & S. Ry. Co., 40 Ark. 141, 16 Am. & Eng. R. Cas. 547; Cunningham v. Mitchell, 4 Rand. (Va.) 189; McClung v. McWhorter, 47 W. Va. 150, 34 S. E. 740; Preston v. Kindrick, 94 Va. 760, 27 S. E. 588. In Leftwick v. Ham ilton, 9 Heisk. (Tenn.) 310, it is held that the rule that an officer's return could not be contradicted was made in proceedings at law, and was adhered to by the court in deference to precedent, and not from conviction of legal correctness, and would not be followed in chancery suits. See McClung v. McWhorter, 47 W. Va. 150, 34 S. E. 740, holding that the rule is the same in law and in equity.

61 Spellmyer v. Gaff, 112 Ill. 29; Gilman v. Stetson, 16 Me. 124; Scruggs v. Scruggs, 46 Mo. 271; Chicago Planing Mill Co. v. Merchants' Nat. Bank, 86 Ill. 590; Woodward v. Harbin, 4 Ala. 534; Thatcher v. Miller, 13 Mass. 271.

62 Terry v. Trustees of Eureka College, 70 Ill. 236; Tennent-Stribbling Shoe Co. v. Hargadine-McKittrick Dry Goods Co., 58 Ill. App. 369; Toledo, P. & W. Ry. Co. v. Butler, 53 Ill. 323.

63 Major v. People, 40 Ill. App. 323.

64 Chicago Planing Mill Co. v. Merchants' Nat. Bank, 97 Ill. 294; White River Bank v. Downer, 29 Vt. 332; Powell v. Com., 11 Grat. (Va.) 822; Davis v. Putnam, 5 Gray (Mass.) 321; Hughes v. Lapice, 5 Smedes & M. (Miss.) 451; 1 Tidd, Pr. (4th Am. Ed.) 696; Thompson v. Crocker, 1 Salk. 49; Moyer v. Cook, 12 Wis. 335; Newhall v. Provost, 6 Cal. 85;

§ 136. Defective service.

There is a distinction between a total want of service of process and a defective service of process. In the former case the defendant has no notice of the suit or proceedings against him, and the decree is coram non judice and void. In the latter case the defective service gives the defendant actual notice of the suit against him, and the decree is valid until set aside by the trial court, or reversed by a direct proceeding in a court of review, and its validity cannot be collaterally called in question.65

The question of the proper practice in the event of a defect in the service of process is also involved in some confusion. In Illinois it is held that where process is defective on its face, or the return of service is of itself insufficient, the defect may be taken advantage of by motion to quash or dismiss; but where the objection to the writ or service does not appear upon the face of the proceedings, but has to be shown by matters dehors the record, the objection must be made by plea in abatement.66 The United States circuit court of appeals for the seventh circuit has held that it is proper to try the question of the sufficiency of the service by motion to quash the return, supported by affi davits.67 The objection to defects in the service of process

Hopkins v. Burch, 3 Ga. 222; Stewart v. Stringer, 45 Mo. 113; Gasper v. Adams, 24 Barb. (N. Y.) 287; Blackamore's Case, 8 Coke, 156a.

65 Harrington v. Wofford, 46 Miss. 31; St. Louis, I. M. & S. Ry. Co. v. State, 55 Ark. 200, 17 S. W. 806; Ex parte Kellogg, 6 Vt. 509.

66 Greer v. Young, 120 Ill. 184, 11 N. E. 167; United States v. American Bell Telephone Co., 29 Fed. 17, setting forth the form of a plea in abatement; Rubel v. Beaver Falls Cutlery Co., 22 Fed. 282.

67 Wall v. Chesapeake & O. Ry. Co., 95 Fed. 398; American Cereal Co. v. Eli Pettijohn Cereal. Co., 70 Fed. 276. In the latter case it is said: "The determining consideration is that the matter at issue, however it may result, will not end the suit. If found against the defendant, the defendant is in court, and must plead. If in favor of the defendant, the return on the writ is vacated or quashed, and the suit remains pending; whereas a plea either in abatement or in bar, if made out by proof, puts an end to the proceeding. The view that a motion, to be determined on affidavits, is the proper practice in such cases, is sus (177)

must be made at the earliest opportunity. If the defendant enters his appearance generally, it operates as a waiver of the objection. 68 Where the service is irregular, it is held that no one but the defendant himself, or his legal representatives, can take advantage of defects in the service on him, and they only by direct proceedings instituted for that purpose. 69 Care should be exercised, in entering an appearance in order to object to the service of process, to limit the appearance to that purpose only; otherwise, the appearance will be general, and the objection waived, and jurisdiction acquired of the defendant.70 Where one of several defendants is a nonresident, and the notice by publication is insufficient to charge him, the other defendants, who were personally served, cannot raise objections to such insufficiency." Objection cannot be first raised on appeal that the service was insufficient.72

§ 137. Persons privileged from service of process.

Ambassadors and public ministers are exempt from the service of the process of the courts of the country to which they are sent; but this exemption does not attach to consuls.73 In many jurisdictions, members of the legislature are exempt from service of process while in attendance upon the legislature, and going thither, and returning therefrom;74 and so are judges of

tained by English decisions."

See, also, Hemp v. Warren, 2 Dowl. (N. S.) 758; Preston v. Lamont, 1 Exch. Div. 361.

68 Grand Lodge, B. of L. F., v. Cramer, 60 Ill. App. 212; Union Nat. Bank of Chicago v. First Nat. Bank of Centreville, 90 Ill. 56.

69 Armstrong v. Grant, 7 Kan. 285; Semple v. Lee, 13 Iowa, 304. See Martin v. Wiggin, 67 N. H. 196.

70 Harkness v. Hyde, 98 U. S. 476.

71 Fergus v. Tinkman, 38 Ill. 407.

72 Cowart v. Harrod, 12 Ala. 265; Gannard v. Eslava, 20 Ala. 732; Ex parte Kellogg, 6 Vt. 509; Shenandoah Valley R. Co. v. Griffith, 76 Va. 913.

731 Kent, Comm. (13th Ed.) pp. 39-45; In re Iasigi, 79 Fed. 751; In re Baiz, 135 U. S. 424; Wilcox v. Luco, 118 Cal. 639, 50 Pac. 758.

74 Stimson, Am. St. Law, § 273.