Denmark v. Liening

Burnett, J., delivered the opinion of the Court Field, J., concurring.

Action before a justice of the peace. Judgment by default, against defendant. Appeal to County Court, where the appeal was dismissed, the judgment affirmed, and the defendant appealed to this Court.

It is objected, by the defendant, that the justice's docket does not show that the summons was> properly served upon the defendant. The entry upon the docket states the issuing of the summons, its date, and the time when made returnable; but contains no statement that it was returned by the officer. The summons was returned by the sheriff, with his certificate, showing that due service was made on July 21st, 1857, and the judgment was entered July 23d. We think the fact of service may be shown by the return of the officer; and that the failure of the justice to state the fact of service in his docket, will not vitiate the judgment on appeal.

The appeal was on questions of law alone; and the only ground of error alleged in the statement was, that there had been no legal service of the summons, and, therefore, the justice had no jurisdiction. The service being good, and the defendant alleging no other ground, the County Court committed no error in affirming the judgment.

Judgment affirmed.