Proceeding upon defendant's motion to vacate sheriff's return of service of summons. The Superior Court, Herrmann, J., held that rule permitting defense of lack of jurisdiction over person to be raised by motion did not repeal, by necessary implication, common-law rule of absolute verity of sheriff's return, and rule of absolute verity prevails notwithstanding adoption of Rules of Civil Procedure.
Stewart Lynch and Alfred R. Fraczkowski (of Hastings, Lynch & Taylor), Wilmington, for plaintiffs.
William Prickett and Jackson W. Raysor, Wilmington, for defendant Benjamin Seidel.
The Court is called upon to decide whether the defendant Benjamin Seidel may attack the verity of the Sheriff's return showing service of summons upon him.
This action was commenced on October 13, 1954. By endorsement on the writ of summons, the Sheriff made return of service of summons upon Seidel as follows:
[49 Del. 258] ‘ Summoned personally Benjamin Seidel and left with him a copy of the within writ together with a copy of the complaint on the twenty-fifth day of October, A.D., 1954.’
On November 12, 1954, prior to the filing of any responsive pleading, the plaintiffs filed an amended complaint and directed
the issuance of another summons. By endorsement on this second writ, the Sheriff made return of service of summons upon Seidel as follows:
‘ Summoned personally Benjamin Seidel, also known as Ben Seidel and Isaac Krigstein and left with each of them a copy of the within writ together with a copy of the amended complaint on the seventeenth day of November A.D. 1954.’
Thereafter, Seidel appeared specially to contest jurisdiction over his person. He moved to vacate or set aside the Sheriff's return of service upon him on October 25, 1954 on the ground that he was not served with a summons in this case prior to the amendment of the complaint and the issuance of the second writ and, therefore, the return of service upon him on October 25, 1954 was a false return.
The plaintiffs contend that the sheriff's return is conclusive as between the parties in this action and that Seidel may not attack the verity of the return in this action by contradicting the fact of service upon him. Seidel contends that the return is presumed to be true and correct but that this presumption is rebuttable and not conclusive. It is agreed that the Sheriff's return of service on October 25, 1954 is complete and regular on its face. There is no allegation of fraud.
There is irreconcilable conflict of judicial opinion as to the conclusiveness of a sheriff's return of service of summons and the remedies available to one who is the subject of a false return. Some jurisdictions remain committed to the common law rule that, when a sheriff's return of service is complete and regular on its face, the return is conclusive as between the parties and the truthfulness of the return cannot be controverted by the [49 Del. 259] defendant in the same action. Other jurisdictions have discarded the common law doctrine of absolute verity and, by statute or otherwise, have adopted the more liberal rule that the return is not conclusive but is only prima facie evidence of the facts therein stated. Under this rule, the defendant may impeach a return ...