
    Jacob Brust v. Henry Green.
    Special Constable; Appointment and Oath; Presumption. Where the defendant in an action before a justice of the peace moved the court to set aside the service of the summons upon grounds which were held by the justice of the peace to be insufficient, and which were in fact insufficient; and afterward the defendant took the case to the district court upon petition in error, where the judgment of the justice of the peace was affirmed; and afterward the defendant brought the case to the supreme court upon petition in error; and in the supreme court he claims that the judgment of the district court should be reversed, for the reason that “ the record in this case does not show affirmatively that the justice was authorized to appoint the special constable who served the summons, or that he took the oath required by statute,” (section 172 of the Justices Code,) and the questions with regard to the authority of the justice to appoint the special constable and with regard to the qualification of the special constable were not raised in the justice’s court: Held, That it is too late to afterward raise the questions, and in the absence of anything tending to show the contrary, it will ie presumed that the justice of the peace did have authority to appoint the special constable, and that the special constable took the required oath.
    
      Error from Clay District Court. •
    Action by Chreen against Brust, upon an account. At the May Term, 1882, plaintiff had judgment for $146.80 against defendant, who brings it here for reversal. The opinion states the facts.
    
      Anthony & Kellogg, for plaintiff in error.
    
      S. A. Burroughs, for defendant in error.
   The ojúnion of the court was delivered by

Valentine, J.:

This action was commenced originally before a justice of the peace of Republican township, Clay county, by Henry Green against Jacob Brust, to recover on an account amounting to $110.62. A summons was issued December 13, 1882, and directed and delivered to “James Tate, special constable of said township,” and made returnable on December 18, 1882, at 10 o^clock a. m. ■ On December 14, 1882, the constable returned this summons to the justice, with the following return indorsed thereon, to wit: “Received this writ December 13, 1882, and served the same by delivering a copy thereof, with the indorsements duly certified, to the within-named defendant. — Jambs Tate, Constable.” Both parties appeared before? the justice, and ordered subpenas to be issued for witnesses. The defendant made his appearance before the justice for this purpose on December 15, 1882, and subpenas Avere issued by the justice as he requested. On December 18, AA'hich was the return-day of the summons and the day set for trial, both parties appeared, the defendant appearing specially and filing the folloAving motion, to Avit, (court and title omitted:)

“Now conies the defendant, Jacob Brust, by Anthony & Kellogg, his attorneys, appearing specially and only for the purpose of this motion, and moves the court to set aside the service of the summons in this action, for the reason that there has never been a copy of the summons served with the indorsements thereon certified by the person serving the same to be a true copy delivered to the defendant or left at his usual. place of residence, nor has there been any other act xlone in this case equivalent to service of summons.”

This -motion Avas heard by the justice upon affidavits, and possibly upon other evidence, but upon what other evidence, if any, the record does not sIioav; and neither does the record sIioav Avhether we have all the evidence before us which was presented to the justice of the peace on this motion, or not. This motion Aras overruled by the justice, Avho at the time made the folloAAnng order and entry on his docket, to wit:

“The court, after hearing the arguments of counsel, overruled said motion, on the ground that defendant voluntarily appeared in said cause; that on December 15, 1882, the defendant voluntarily appeared, and had three subpenas issued in his behalf in said cause and took copy of bill of particulars filed by plaintiff, to which ruling the defendant excepted; and the defendant and his attorney, after filing their bill of exceptions, AAÚthdrew from the court. Witnesses for the defendant claimed their fees and mileage.”

The justice then heard the plaintiff’s evidence, and rendered judgment in favor of the plaintiff and against the defendant for the sum of $97.75, with interest and costs. The defendant then took the case to the district court on petition in error, where the judgment of the justice of the peace was affirmed. The defendant then brought the case to this court on petition in error. The grounds alleged for error in this court are, that the defendant was not duly served with summons in the justice’s court, and therefore that the justice did not have any jurisdiction over his person, or to hear or determine the case, and therefore that the district court erred in affirming the judgment of the justice of the peace. But the grounds urged in the brief of plaintiff in error, defendant below, for reversal, are not the grounds set forth in the defendant’s motion in the justice’s court to have the service of summons set aside. The grounds urged for reversal in this court as set forth in the brief of plaintiff in error, defendant below, are as follows:

“The record in this case does not show affirmatively that the justice was authorized to appoint the special constable who served the summons, or that he took the oath required by statute. (Sec. 172 of the Justices Code; Comp. Laws of 1879, p. 729.)”

Now we do not think that the judgment of the court below can be reversed, for either of the grounds alleged in the defendant’s motion before the justice of the peace to set aside the service of the summons, or the grounds urged in this court in the defendant’s (plaintiff in error’s) brief. The record brought to this court does not show that no duly-certified copy of the summons, with the indorsements thereon, was served upon the defendant; but the record, so far as it goes, shows that a duly certified copy of the summons, with all the indorsements thereon, was duly served upon the defendant. And no question was raised in the justice’s court as to whether the justice was duly authorized in accordance with the provisions of § 172 of the justices code, to appoint the special constable who served the summons, or not; or whether the constable took the oath required by said section, or not.

In all probability the justice of the peace Avas amply authorized to make the appointment under the circumstances of the case; and'in all probability the constable took the required oath; and if the question had been raised in the justice’s court, the justice would undoubtedly have made his docket so show. We think it is too late for the plaintiff in.error, defendant • below, to afterward raise this question. He should have raised the question in the justice’s court. We do not think that the record -in this case shows any error, and therefore the judgment of the court will be affirmed.

All the Justices concurring.  