
    The State of Indiana v. James Davis et al.
    1. Omission of Seal on a Summons—Amendment nunc pro tunc.—Under the code a summons is not void because not attested by the seal of the court; and the court has the right to order the clerk to affix the seal nunc pro tunc after judgment has been entered and the term has expired at which the summons was returnable.
    2. Setting Aside Default.—On a motion to amend by affixing a seal, the right to have a default and judgment set aside cannot be determined.
    3. Contradicting Sheriff’s Return.—Nor can the sheriff’s return be contradicted by pleadings filed for the purpose of setting aside such judgment and default.
    Filed May 25, 1881.
    Appeal from Montgomery Circuit Court.
   Opinion of the court by

Mr. Justice Elliott.

On the 10th day of September, 1879, the clerk of Montgomery county issued againt the appellees a summons, perfect in form and substance, except that it lacked the seal of the court from which it issued.

There was no appearance by appellees to the action in which the summons issued and judgment was entered against them upon default.

On the 18th day of November, 1879, the appellant, by her prosecuting attorney, moved upon proper notice for an order directing the clerk to attach the seal now for then. The motion is supported by the affidavit of the clerk showing the issuing of the writ, and by that of the deputy sheriff showing due service. Answers were filed by the appellees to the motion or complaint of the appellant, but these were stricken out on motion of appellant.

Finally an order was made striking appellant's original motion from the docket and this terminated the proceedings in the court below.

The first question, and really the controlling one, presented by this appeal is this : Has the circuit court the power to make an order directing the clerk to affix the seal of the court now for then, to a summons issued previous to, and returnable at a former term, after judgment has been entered and after such term has finally closed ?

It is undoubtedly true, as appellees insist, that at common law a writ issuing from a court must, in order to be entitled to be considered as regular and authoritative, be attested by the seal of the ■court from which it issued.

Williams v. Van Metre, 19 Ill. 293; State v. Fleming, 66 Me. 142; Wheaton v. Thompson, 20 Minn. 196 ; Ruder v. Murray, 3 Ark. 119. The case of The Insurance Co. v. Malloch, 6 Wall. 556, does decide that an order of sale issued by a court of this State was void because not attested by the seal of the court.

It has also been held by this court that, where there is no statute to the contrary, a writ or record must be attested by the seal of the court from which it comes. Jones v. Frost, 42 Ind. 543 ; Horton v. Broum, 1 Bkf. 429; Sandford v. Linton, 34 Ind. 539.

The older cases did hold that a writ lacking the seal of the court was absolutely void, but there is much conflict upon this point among the modern cases, many of them holding that such a writ is not void, but merely voidable.

Our court long since held that such a writ was not void.

It is true, as argued by appellees, that a summons so clearly defective as to be insufficient to confer jurisdiction cannot, after judgment, be so amended as to give jurisdiction. If a summons without a seal be conceded to be void, then there can be no amendment, for it is axiomatic that a void thing cannot be amended.

The liberal provisions of our statute respecting the summons would take such writs from under the old common law rule, even if it were conceded that it was the rule which must be adopted respecting other writs.

The provisions of the code upon this subject are contained in Article IV., and the provision which directly bears upon the point is found in section 37,, and is as follows:

No summons or the service shall be set aside or be adjudged insufficient where there is sufficient substance about either to inform the party upon whom it may be served that there is an action pending against him in court.”

W« think it very clear that the omission to affix the seal does not prevent the writ from imparting to the parties against whom it is issued—and that very fully and distinctly—information that an action is instituted against them. The seal would afford no information; its office is merely to attest the authenticity of the writ. The absence of the seal does not take from the substance of the writ anything essential to the information which our code provides that it shall give the parties against whom it is issued.

There is certainly sufficient substance about a summons which is defective only in the single particular that a seal is lacking, to impart full information that an action has been instituted against the parties therein designated as defendants.

A summons which is sufficient in substance to do this is valid under our statute. This was so. held in Boyd v. Fitch (this term), and we are well satisfied that the ruling was entirely correct.

We hold that under our code a summons is not void because not attested by the seal of the court, and that the court has the right to order the clerk to affix the seal now for then. Meiers v. Rogers, 60 Ind. 189; Martin v. Newhouse, 68 Ind. 224.

The appellees, by their assignment of cross errors, and by their brief, ask us to consider and reverse the ruling of the court striking out their answer and cross-complaint. The pleading of appellees alleges that the defendants were called and defaulted on the 25th day of September, 1879; that “no valid” summons “was served on the appellees; that judgment was rendered against them ; that when notice of the motion was served they were preparing to have such default and judgment set aside.”

The only relief sought by the appellants was an order for the nunc pro tunc amendment of a writ, and upon such a motion the right to have a default and judgment set aside could not be litigated. But if it could have been, the appellant’s pleading was,bad, because it contradicted the sheriff’s return to the writ in the action in which judgment was entered, and this could not, certainly, in such a proceeding as the present, be rightfully done. Splahn v. Gillespie, 48 Ind. 397.

It is true that the pleading avers that “ no summons was ever issued by the clerk of the court under the seal of the court;” but this is precisely what the appellant’s motion admits there was in issue.presented.

In other parts of the pleading it is alleged that “ no valid summons was issued or served.” This is an insufficient allegation, because it is a mere negative pregnant. The negative implies the service of a writ invalid only because it lacked a seal. Pomeroy Rem., § 618.

Attorney General for appellant.

Paul & Humphries for appellee.

The court erred in striking appellant’s motion from the docket, but did not err in striking out the appellees’ answers.

Judgment reversed, at the costs of the appellees.  