irregular service, the judgment will neither be held void nor reversible on account of the irregularity.1 § 1360. Reference to Other Chapters. - Defects most frequently occur in the constructive service of process, especially when it is by publication in a newspaper. Many instances of defective service also arise in notifying parties to bills and notes of the dishonor of such paper. The sufficiency or insufficiency of the service of original process and other notices used in practice will necessarily be rendered manifest by the return of the officer or other person by whom the service is made, and will accordingly be considered in the next succeeding part of this chapter. To avoid useless repetition and reiteration of authorities, the reader is referred to the chapters and parts of chapters where those topics are separately treated." VIII. THE RETURN. § 1361. General Remarks. 1362 Nature and Purpose of Return-Form and Sufficiency. 1363. When Name of Officer not Used. 1364. When Service without the State. 1365. Should Show Compliance with Statute. 1366. To the Proper Term. 1367. Contents of Return. 1368. Further Illustration. 1369. Immaterial Errors. 1370. Defects Cured by Recital in Judgment. 1371. Judgment by Default on Insufficient Return, Void. 1372. Examples of Defect Fatal to Judgment. 1373. Return Contradicted by Record. 1374. Examples of Defective Returns. 1375. What Deemed Sufficient. 1376. When Served on Officer of Corporation. 1 Comer v. Jackson, 50 Ala., 384. See Ch. I., Pt. II.; Ch. VII.; Ch. VI, Pt. IV.; Post, Pt. VIII. 1377. Inference from General Language of Return. 1378. Return Cannot be Contradicted. 1379. Exceptions to Above. 1380. Presumptions in Favor of Return. 1381. May be Amended. 1382. Aided by Presumption. 1383. Aided by Parol Evidence. 1384. Aided by Contents of Bill. 1385. Conflicting Views as to Impeaching Return. § 1361. General Remarks. The importance of the return by which the sufficiency of the service is usually tested, is second only in importance to the service itself. Being a ministerial duty which frequently devolves upon an ignorant, irresponsible deputy, its careless execution is often fruitful of vexatious and expensive delays in the administration of justice, and where it accurately recites an antecedent failure of duty in not properly serving the process, may drive the party injured by the neglect, to further litigation, in order to recover the ground lost through official negligence or incapacity. 1362. Nature and Purpose of Return--Form and Sufficiency. — The object and purpose of the return is to prove the service of the paper returned. The return should be in writing; but, as will be seen in another place, this is not an inflexible rule.1 When written, it must be signed by the person making the service, and if by a deputy should be in the name of the officer for whom he acts, by the deputy; for the law does not recognize, nor the courts take notice of, the acts of a deputy sheriff, marshal or constable, except as the acts of his superior. And where the record, after judgment, showed a return of original process, made in the name of the deputy instead of the sheriff himself, the judgment was declared void. When, however, the service is within the county, by the sheriff, in signing the same, it is not necessary that his name and title should be followed by the name of the county within which he acts officially. The court will be presumed to know its own officers.* 'See Post, § 1383. Bolard v. Mason, 66 Pa. St., 138. Rowley v. Howard, 23 Cal., 401. 4 Chittendon v. Hobbs, 9 Iowa, 417; Davis v. Burt, 7 Id., 56. $1363. When Name of Officer not Used. This rule, however, applies only to deputies who act for and under the directions of a duly commissioned officer. When, to meet an emergency, it becomes necessary for the court to appoint a special deputy or elisor, the necessity for the employment of the regular officer's name ceases, and the return is made in the name of the special officer, by whom the notice is served.' When, as is frequently the case, the notice is served by a person who acts in no official capacity whatever, but performs the functions of an officer in serving notice, at the request of one of the parties, it is necessary that the return should be verified by his affidavit, and such affidavit should accompany the return." And when a return so verified is filed with the clerk of the court, it is so favorably regarded, that it will, at least, be held to satisfactorily establish the fact of service, until the same is denied in an equally solemn manner, though such sworn return may be lost or mislaid by the clerk. When there is per $1364. When Service without the State. sonal service of notice outside of the state from whose court the same issues, the return should be verified; for the reason that, by whomsoever the paper is served, whether an officer or a private person, it must be regarded where the notice is returnable as an unofficial act. If the service is by the sheriff of the court, it cannot be proved by his unsworn certificate, because the act was performed where his official character was not recognized. And if it be served by any other sheriff or officer, who is not an officer of the court, verification is necessary, because the service is by one who is unknown in the court where his certificate is offered.* 1 Glencoe v. People, 78 Ill., 382. 2 Coffee v. Gates, 28 Ark., 43; State Bank v. Marsh, 10 Ark., 129. 3 Estate of Robinson, 6 Mich., 137. The service of notice of appeal may be proven by affidavit in the appellate court. It has been held of no consequence that the record failed to show service of such notice, when it was supported by the affidavit of the person serving the same. Mendioca v. Orr, 16 Cal., 368. It should appear by the return that the service was had at a place within the limits prescribed in the act. Fisher v. Fredericks, 33 Mo., 612. §1365. Should show Compliance with Statute. Where jurisdiction depends upon the service of notice, it is necessary that the statute by which the proceeding is authorized should be closely followed, and that the return should show a substantial compliance with its requirements, in all essential particulars. The time of service should be correctly stated, and where a return stated that the notice had been served at "11 M.," it was held defective and the service to be set aside on motion made for that purpose.2 § 1366. To the Proper Term. The original process when served should be returned to the proper term; but if the time of holding the court be changed by statute after the issuance of the summons, without requiring such writs to be returned for correction, they should be returned to the next subsequent term. Unless the return day is changed by statute, it remains as fixed by law. Any alteration made by the court or clerk will not authorize a return at a different time than that prescribed.4 § 1367. Contents of Return. What the written return should contain, depends of course upon the manner and mode of service; but whatever mode is adopted, the return should state the facts in detail. It is not sufficient to employ the word "due" to express to the satisfaction of the court that the duty has been properly executed. "Due service,” and “duly served," when used in the return of legal process, mean nothing, because they come from an officer not supposed to use them advisedly, as they are expressive of a conclusion of law. The sheriff, when he returns that the paper has been duly served, assumes the province of the court in attempting to determine what amounts to valid service. The manner of serving the process should be described so that the court may be able to judge of its sufficiency. A return which under 1 Bendy v. Boyce, 37 Tex., 443. 2 Hodges v. Brett, 4 Green (Ia.), 345; Milbourn v. Fouts, Id., 346. 'Freeman v. Thompson, 53 Mo., 183. 'Crowell v. Galloway, 3 Neb., 215. 'Botsford v. O'Connor, 57 Ill., 72. 2 took to state all the necessary facts in the single word "executed," was held insufficient.' But it was held in one case that the words "Received in office, Aug. 22, 1870," and "Executed Aug. 22, 1870," followed by the sheriff's name and title, and copied into the transcript immediately after the summons and complaint, in the absence of objections in the trial court, showed a sufficient service which could not be questioned after judgment by default. This case is certainly not in harmony with the majority of those where the same question is considered, for the reason that the return does not recite facts sufficient to enable the court to judge of the sufficiency of the service. However, another case from the same court is scarcely less at variance with the current of authority. There it was decided that a subpoena issuing out of a court of chancery, directed to all the defendants, and returned "executed on the parties, this Oct. 1, 1870, with copy," sufficiently showed a proper service of the process. a return $1368. Further Illustration. -The recital on "Executed by delivering a true copy," with the date, is certainly fuller and more complete in its recitals than either of the two foregoing; and yet this was held insufficient. But where the return was in the words following: "Executed on the within-named J. J. M. this Oct. 12, 1870, by personal service; copy waived; " or, "Executed 31st March, 1859, by delivering to the defendant a true copy of this writ, together with the certified copy of petition," in both these cases it was held to be sufficient, because there was such a description of the manner of executing the process that the court was enabled to determine whether the defendant had been properly served. 'Merritt v. White, 37 Miss., 438. 6 |