
    J. E. Betts v. B. B. Boyd.
    [Filed May 6, 1891.]
    Summons: Service: Return. A sheriff's return of mesne process in the words, “Received this summons the 27th day of July, 1888, and I hereby certify that on the 30th day of July, 1888, I served the within writ of summons on the within J. F. Betts, by delivering to him a true and certified copy of the same with all the indorsements thereon,” held, sufficient under sec. 29 of the Code, and 22 of chap. 20, Comp. Stats.
    Error to the district court for Cedar county. Tried below before Kinka.id, J.
    
      Wilbur F. Bryant, for plaintiff in error,
    cited: Murfree, Sheriffs, sees. 839-40.
    
      B. B. Boyd, pro se.
    
   Cobb, Ch. J.

This action was originally brought in the county court of Cedar county on the following bill of particulars:

“ J. E. Betts,
In account with B. B. Boyd, Dr.
“For attorney fees.......................................$25 00
“For which amount, with interest at seven per cent from January 2, 1886, plaintiff asks judgment.”

Summons was issued, indorsed in the words and figures, of the bill of particulars, served by the sheriff, and returned as follows:

“Rec’d this summons the 27th of July, A. D. 1888; I hereby certify that on the 30th day of July, 1888,1 served the within writ of summons on the within named J. E. Betts by delivering to him a true and certified copy of the same, with all the endorsements thereon.”

Default was entered against the defendant. After the record of the default the following appears:

“ Whereupon the plaintiff appearing in person and in his evidence admits a credit of $5, it is therefore found that the defendant is indebted to the plaintiff in the sum of $23.30, with interest from date.”

On September 5, 1888, transcript of the judgment was taken on error by the defendant to the district court, and November 14 following, on hearing and argument, the judgment of the court below was affirmed.

The plaintiff in error brings it here for review on the following errors:

I. That the return of the sheriff was insufficient to show jurisdiction.

II. That there was no evidence before the court upon which to base a finding.

III. That the judgment was excessive.

The first error is that the sheriff’s return was insufficient to show jurisdiction, or that it fails to show that a copy of the writ was delivered to the defendant personally,. or was left at his usual place of residence, as required by sections 29 of the Code, and 22 of chapter 20 of the Statute. This objection seems wholly groundless and hypercritical. In support of it, however, is cited an authority on the law of sheriff’s duties, to the effect that Where by statute, alternative modes of serving process have been prescribed, it is required not only that the sheriff’s return shall show that the writ has been ‘executed,’ but it must also show how it was executed, and which of the two or-more statutory modes of bringing the defendant before the-court was adopted by the officer.” (Murfree on Sheriffs.,, sec. 840.)

This rule was satisfied, and the statute was complied with when it was shown by the return how the defendant was personally served with process, “ by delivering to him a true and certified copy of the same,” and not by leaving it-at his usual place of residence, as the alternative. To deliver is to give or transfer, as to deliver a letter, from one person to another, or mesne process from the sheriff to the defendant, who,was thereby served in person, in compliance with the statute. In the ten decisions under sec. 69, as to the service of process, it has not been held that the return should run in the words of the section in order to establish a personal service. Words which imply it precisely, leaving no other construction, ought to be deemed sufficient to establish the fact.

In Parker v. Starr, 21 Neb., 680, the sheriff returned: I served this summons on S. S. in person, and S. E. S. and C. S., by delivering to each of them a true and certified copy with all the indorsements thereon,” was held to-be sufficient — the process was delivered to them. An actual delivery, or a delivery in fact, is the transfer of the physical possession of the object in esse.

If the custom of noted speakers and writers in literature as a standard of accuracy has yet any authority, sufficient examples of personal service may be cited in the use of the word “ deliver.”

For Joseph said to the chief butler, “ thou shalt deliver Pharaoh’s cup into his hands,” and from the same account it is certain that the third day the Egyptians had the cup. (Gen. xl : 13.)

And when Prince Hal. ordered the guard to deliver Falstaff over to the constables for his lying impertinence, it is not questioned that Sir John was under close arrest until again delivered from it. (VI Hen. IV.)

At the first day’s battle of Shiloh the right of the enemy rested on the bank of the Tennessee river, “ when two federal gunboats delivered their fire with vigor and effect,” and personally to the commander-in-chief, who fell in this action. (U. S. G. Memoirs, vol. 1, p. 367.)

These are examples of actual, personal delivery in fact, on the usage of the word, from an early period to a more recent one.

The county court having ample jurisdiction, it is shown from the record that the defendant made default, that the plaintiff appeared and gave “his evidence,” upon which the court found for the plaintiff and rendered judgment.

That the judgment is excessive is an objection that the plaintiff in error should have made at the trial in the lower court.

“ In all cases of error, not of a jurisdictional character, before the aggrieved party can be heard in the court of •error he should first seek relief at the hands of the court where the error occurred.” (Griggs v. Le Poidevin, 11 Neb., 385.)

The errors in this case are not merely technical, they are frivolous. The judgment of the district court is

Affirmed.

The other judges concur.  