Brien v. Casey

The order appealed from was properly granted. Before the party entitled to it can obtain from the court relief as applied for, he must show the service of the summons, and that no answer has been received.

The service of the summons was sufficiently proven by the sheriff’s certificate, which did not lose its force or validity by having been filed in entering judgment in 1850. That judgment was vacated, and the certificate was entitled to as much credit afterwards as before. I do not understand that the rule which has been applied to affidavits, has ever been extended to the official documents of sworn public officers, and I can see no reason why it should be. Even as regards affidavits, I have never been able to understand why an affidavit which has been used on a motion, is not just as good evidence of the facts therein stated, as it would be, if copied and resworn to.

But an affidavit that no answer had been received, which was sworn to March 27, 1850, did not prove that no answer had been received at the time of making the motion. Many *418occurrences might have led to putting in answer after that affidavit was made. The intent of the Code is that the plaintiff shall show to the court that when he makes his application no answer had been served on him.

The order appealed from is affirmed, with ten dollars costs.