Perry v. Gholson

65 P. 601, 39 Or. 438, 1901 Ore. LEXIS 91

• Court: Oregon Supreme Court
• Decided: July 15, 1901
• Status: Published

Opinion

Mr Chiee Justice Bean

delivered the opinion.

This is an action to recover possession of personal property. The defendant, who was acting as a constable, justifies the seizure and detention thereof under a writ of attachment issued out of a justice’s court. The plaintiff denies that the writ relied on was duly or regularly issued. At the trial, after plaintiff had rested, defendant, to prove the allegations of his answer, offered in evidence certified copies of the docket entries and papers in the action in which the writ was issued ; but the trial court refused to admit them in evidence, because it did not sufficiently appear that a summons had been issued at the time of the issuance of the writ. The following entries appear in the justice’s docket, prior to the entry showing the filing of the affidavit and undertaking ■ for the writ of attachment and the issuance thereof: “Summons issued September 19, 1899. Case set for hearing on the twenty-eighth day of September, 1899, at the hour of 1 o’clock in the afternoon.” The docket also shows that at the time set for the hearing the defendant in the action appeared specially by his counsel and moved to quash the summons and service thereof, basing such motion upon his affidavit, to which was annexed a copy of a summons in .foi-m as required by the act of 1893 (Laws, 1893, p. 39), dated September 19,1899, and which he avers was the only paper served upon him purporting to be a summons. No return was ever made upon the original summons, and it therefore does not appear among the files of the justice’s court. The argument is that, to support a writ of attachment issued out of a justice’s court, it must appear from the record not only that an entry was made by the justice in his docket that a summons had been issued, but that it was such a summons as the law requires, and was delivered to the officer for service prior to the issuance of the writ of attachment, and that the original summons and the indorsement thereon are necessary proof of such facts.

1. A plaintiff in a civil action in a justice’s court is entitled to the benefit of the provisional remedy of attachment, as in like cases in courts of record (Hill’s Ann. Laws, § 2064) ; and it has been conceded in the argument that a writ of attachment can not issue from such court until the summons has been issued, so that the only question for decision is the character of proof required of the issuance of the summons. In the circuit court a summons is prepared and signed by the plaintiff or his attorney, and is not deemed issued until it is placed in the hands of the officer, with the intention that it be served upon the defendant, and the only legal evidence of the delivery to the officer is the indorsement which the law requires him to make thereon: Hill’s Ann. Laws, § 52 ; White v. Johnson, 27 Or. 282 (40 Pac. 511, 50 Am. St. Rep. 726, and note); but in a justice’s court the summons is signed and issued by the justice (Laws, 1893, p. 39 ; Laws, 1899, p. 109), who is required by the statute to make an entry in his docket of the date of the issuance thereof (Hill’s Ann. Laws, § 2055). The legal evidence of the fact of the issuance of the summons is thus provided, and, in our opinion, the docket entry is sufficient proof of that fact to support a writ of attachment. Until the summons is returned, it is no part of the record, and in its absence the entry in the justice’s docket is the only evidence of its issuance. The presumption is that the justice did his duty and made a correct entry in his docket, and we do not think the actual return of the summons is necessary to the validity of the attachment. In cases arising in the circuit and county courts there is no means provided by which the date of the issuance of a summons can be determined, except by the indorsement of the officer thereon, but in cases arising in a justice’s court there is no law requiring the officer to indorse on the summons the date of its delivery to him. The date of its issuance is determined by the time it was actually issued by the justice, and the proof thereof is the entry made by him in his docket.

2. It is also argued that the summons was void'because in the form required by the act of 1893, and not the act of 1899, under which the action was brought. But this was a defect in the form only, and a judgment based thereon would not have been open to collateral attack: North Pac. Cycle Co. v. Thomas, 26 Or. 381 (38 Pac. 307, 46 Am. St. Rep. 636, and note); Van Fleet, Collat. Attack, 351. The judgment is therefore reversed, and a new trial ordered. Reversed.