Nietert v. Trentman

Dissenting Opinion.

Elliott, J.

I am compelled to dissent from the conclusion reached in the prevailing opinion. There is but one point decided and that is this: A defendant may, for the pur*394pose of setting up a defence, contradict a sheriff’s return to the summons. The question is not whether a defendant may show some excuse for not obeying a summons or may be relieved on the ground of fraud, but whether he may directly contradict the sheriff’s return. The complaint does not admit service and offer an excuse for a failure to appear; on the contrary, it broadly denies service. The pleading…