Cobb v. Newcomb

7 Iowa 43

• Court: Supreme Court of Iowa
• Decided: October 19, 1858
• Status: Published

Opinion

Woodward, J".

The omission by the officer, to indorse the time of receiving the notice, does not vitiate the service. If this time becomes important, the return may be amended, or'the day of service may be taken as the time. It is manifest from other facts of the record, that the action was not commenced before the notes became due. The notice is dated, and states that a petition is now on file, and the clerk’s certificate or record shows, that the petition was filed on the day of that date, which was after the maturity of the note. The return certifies that the notice was served “ on the defendant,” and there is but one. This is sufficiently certain. As the statute, (section 1723), requires the officer to state in his return, whether a copy of the petition was demanded, his return of “ no copy demanded,” will be presumed to refer to that, rather than to a copy concerning which the statute makes no such requirement. The presumption should be in favor of the fulfilment of his duty, rather than the omission of it.

The judgment is rendered for a larger amount than is claimed, and larger than the plaintiff' was entitled to recover, by a'small sum, but this is not assigned as error.

The judgment is affirmed.