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respectively described, and estimated to have a lump value of fifty dollars; and it is contended by appellant that the indictment does not state facts bufficient to charge the appellant with crime under the laws of this state; but that it is necessary to allege the value of each separate article or thing charged to have been stolen. We think the extent to which the courts have gone on this proposition is, that where a lump value is given, and the proofs show that only a part of the articles alleged to have been stolen was stolen, the variance is fatal. It is true that it is stated as a general rule in section 206 of Wharton's Crininal Pleading and Practice that " when, as in larceny or receiving stolen goods, personal chattels are the subject of an offense, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated.” But it is evident from the whole text, and cases cited to sustain the proposition, that it is stated only with reference to a question of variance between the indictment and the proof; for the learned author refers to Wharton's Criminal Evidence, sections 121-126, which treat exclusively of the variance between the indictment and the proof; and the sufficiency of the indictment to charge a crime is not discussed at all. As to People v. Coon, 45 Cal. 672, cited by Wharton, it was decided that where the indictment charged the defendant with stealing five certificates of shares of stock of a certain number, and the proof showed there was but one such certificate, there was a fatal variance. So in Hope v. Commonwealth, 9 Met. 134, cited by the appellant, while the court states that the well-settled practice has been that of stating in the indictment the value of the articles alleged to have been stolen, the opinion, as a whole, shows conclusively that the application was to a question of variance; for the question decided is shown by the concluding language of the opinion, which is as follows: “Our statutes, it will be remembered, prescribe the punishment for larceny with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long-established practice, the court are of the opinion that the value of the property alleged to be stolen must be set forth in the indictment, and that where an indictment alleges a larceny in various articles, and adds only the collective value of the whole, such allegation is not sufficient, where the defendant is not found guilty of the larceny as to the whole. The plain inference is, that the allegation would have been sufficient if the defendant had been found guilty of the larceny as to all the articles; or in other words, that the allegations were sufficient to charge a crime. In McCarty v. State, 1 Wash. 377, 22 Am. St. Rep. 152, the general proposition was stated, that the value of each ticket should have been alleged; but the main proposition decided, as shown by the authorities cited, was, that the information should have shown that they were genuine, effective tickets, and that unstamped, undated, and unsigned railroad tickets were not the subject of larceny.

It is stated in 2 Bishop's Criminal Procedure, section 714, " that the ordinary and practically best form of the allegation is to add the value of each specific article"; and this, the author says, is necessary, so that if one is inadequately laid, or is not proved, the averment as to it alone may be rejected; but adds that in strict law, looking to the indictment alone, there is no objection to stating simply an aggregate value of the whole. The same doctrine is announced in State v. Hart, 29 Iowa, 268; State v. Murphy, 8 Blackf. 498; State v. Beatty, 90 Mo. 143; State v. Buck, 46 Me. 531; 12 Am. & Eng. Ency. of Law, 818; State v. Hood, 51 Me. 363; Meyer v. State, 4 Tex. App. 121.

In fact, the overwhelming weight of authority sustains this view. We think there is nothing in the contention that the information is bad for duplicity.

The judgment of the lower court is therefore affirmed.

LARCENY - INDICTMENT ALLEGING VALUE OF SEPARATE ARTIOLES STOLEN. — The number of bank bills stolen need not be alleged in the indict. ment. If their amount is given, it is sufficient: Commonwealth v. Grimes, 10 Gray, 470; 71 Am. Dec. 666, and note; note to State v. Segermond, 10 Am. St. Rep. 174; State v. Hensher, 3 Wash. 12. But an indictment for grand larceny, charging the taking of ninety-three railroad tickets, of an aggregate value, without alleging the value of each ticket, or that they were stamped, dated, signed, and genuine, is insufficient: McCarty v. State, I Wash. 3773 22 Am. St. Rep. 152, and note with cases collected.



ASIDE JUDGMENT. — A defendant against whom a judgment by default has been rendered upon a false return by the sheriff of service of sum. mons upon him, and whose property has been sold under an oxecution issued upon such judgment, may assuil such return in an action brought to set aside the judgment and sale, without proceeding directly against the officer for damages. Action to set aside a judgment and sale. The opinion states the case.

White and Munday, for the appellant.
John Arthur and J. W. Spriggs, for the respondents.

DUNBAR, J. On the tenth day of June, 1890, respondents brought an action against appellant in the superior court of King County, for the sum of $1,196.75, alleged to be due on an unbalanced account, together with interest at the rate of ten per cent per annum from May 17, 1890. Summons was issued, and in due time returned and filed in the office of the clerk of the court, having indorsed thereon the return of the sheriff, to the effect that said summons had been personally served on the defendant, Thomas Johnson, plaintiff herein, on a day specified. The time for answering having expired, the default of the defendant, Johnson, was ordered entered by the court, and thereupon judgment was rendered and entered by the court in favor of H. P. Gregory & Co. against said Thomas Johnson for $1,211.70, and costs of suit. Execution was issued on said judgment, and the lots of land described in the complaint were levied upon thereunder and sold, the plaintiffs in the action becoming the purchasers; and Johnson brings this action, asking that said judgment of default, and all subsequent proceedings in the action, be declared illegal and void and of no effect, for the reason that the sheriff's return was false, in that he was never served with summons, and had no notice of the suit whatever, and that he did not know of the judgment, or any proceedings thereunder, until after the sale of said land; alleging that he did not owe all of the amount claimed, and that the judgment which plaintiffs, H. P. Gregory & Co., would obtain against him in the trial of the cause would be less than the judgment heretofore obtained; and claiming a right to select and claim the lands sold as a homestead, under the exemption laws of this state. To this complaint the respondents interposed a demurrer, that it did not state facts sufficient to constitute a cause of action. Demurrer was sustained, and the appellant, relying on his complaint, comes to this court. This case raises squarely the question whether or not, in this kind of an action, a return of the sheriff can be assailed and judgment and sale set aside, the appellant contending that the jurisdiction of a court of equity to relieve against a judgment pronounced without service of process is well established, and respondents contending that the return of the officer imports absolute verity, and that when it shows a regular and proper service it cannot be traversed or impeached, except in a direct proceeding in which the sheriff is made a party.

Upon this question there is, without doubt, a very great conflict of authority, the courts of different states having established different rules, in conformity with their respective ideas of the best manner of subserving public policy and protecting private rights. In this opinion we will not essay a review or analysis of the cases reported on this question, all of which that were available we have examined, and many of which are exceedingly interesting, but will refer to Herman on Estoppel, 197, 198, 539-546, inclusive, where the author stoutly maintains the doctrine that public policy demands the upholding of execution sales, and urges with great cogency that if it were otherwise parties could not be induced to purchase, and that the rule is necessary to secure the rights of parties and give validity and effect to the acts of ministerial officers, and that parties injured by such return can obtain redress only by an action against the officer for false return.

The subject is exhaustively argued by the author and authorities collated, including Walker v. Robbins, 14 How. 584, which is one of the main cases relied upon by the author to sustain his contention, although in that case the supreme court of the United States drew a distinction between cases where the plaintiff, at law, was not in fault, and cases where the plaintiff had done something to connect him with or make him responsible for the false return; though it is difficult to see why this fact should be allowed to affect the rights of the defendant to the action, if, as a matter of fact, he had not been served with process, and had no notice of the trial of the cause. In support of the proposition that the want of service of process may be shown in equity in opposition to the statement on the judgment roll, we cite Freeman on Judgments, sec. 495, and cases cited; Taylor v. Lewis, 19 Am. Dec. 137, note; and note to Oliver v. Pray, 19 Am. Dec. 603612. These notes by the author contain an exhaustive com: pilation and review of the authorities pro and con, and we are convinced from their examination that the great weight at least of modern authority sustains the view that the return of the officer may be assailed in a direct proceeding to set aside the judgment, in addition to defendant's right to proceed against the officer for damages. And this view of the law appeals to our judgment as being founded on the better reasoning. No doubt hardships will arise under such a con. struction of the law, and public policy demands that credence should be given to the record; but prudential considerations of public policy must not be carried to the extent of establishing conclusive presumptions which destroy the citizen's constitutional right to his day in court. No greater hardship could certainly be conceived of than to deprive a person of his property without due process of law, and no principle is more antagonistic to our form of government and system of laws, or to the provisions of our constitution. In this case, if the allegations of the complaint are true, the plaintiff has been deprived of his property without due process of law, and it is cold comfort to him to be informed that though he must satisfy a judgment which he never had an opportunity to contest, and that he and his family must be turned out of a home which the law would allow them to retain as a homestead, that he has a remedy against the officer who made the false return.

It was said by the supreme court of Tennessee, in Ridgeway v. Bank of Tennessee, 11 Humph. 523, that "the action for false return is an inadequate remedy for such an injury; for it might be that after a ruinous sacrifice suffered in the pay. ment of a judgment so recovered, and the delay and expense of litigation with the officer who made the false return, he might be unable to make the proper indemnity, or succeed in evading his liability.” Of course, the presumption is, that the return of the officer is correct, and the proof of its falsity should be clear and convincing, but it is going too far to hold that such presumption is absolutely conclusive.

The judgment will be reversed, and the defendant given an opportunity to answer.


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