doing improper descriptions of the corporation may be rejected as surplusage.49 Abbreviations of names,50 either of the defendant or of its officers or others, are not fatal defects, if they fairly and certainly describe the intended corporation or persons.

§ 3013.Effect and conclusiveness when questioned. Although the return if unquestioned is sufficient evidence of jurisdiction over the corporation,51 it remains to be seen what binding force it has when attacked. The conclusiveness and effect of a return to service on a corporation is not different from that ascribable to service and return. on natural persons, and as to this there is such a variety and conflict of opinion that no attempt to set it all forth, much less to resolve it, can be permissible in this connection. Additional confusion is made by using the word "conclusiveness" indiscriminately with respect to the effect before judgment, when the return is still assailable in the ordinary course, and the effect after judgment, when attack must be made on the service by seeking relief from the judgment. By the common-law rule of England and also in many states it is regarded as conclusive on all matters properly belonging to it and on parties and privies within the jurisdiction; but only prima facie when the judgment is viewed as a foreign one, or as to unnecessary or improper recitals or those supposedly outside of the server's knowledge. It may, of course, be impeached for fraud or mistake.52 The larger number of states seems to favor the more liberal and more modern rule that the return may be impeached by affidavit or otherwise in a direct proceeding, such as motion to dismiss, to quash, or to vacate a default.53 On collateral attack and as against the officer, but not in his favor, when a party opposes him in interest it is conclusive. as a general rule; while as against strangers it is only prima facie.54

only in defendants' names, both copies were of one of such writs. Central & M. R. Co. v. Morris, 68 Tex. 49, 3 S. W. 457.

49 An unnecessary recital that defendant "the A. P. Co. (now A. & Co., a corporation)" was served, is not conclusive of the succession of corporations and may be regarded as surplusage to uphold the service. Regent Realty Co. v. Armour Packing Co., 112 Mo. App. 271, 86 S. W. 880. 50 Description of Odd Fellows Building Association, defendant to the

writ, as "O. F. B. A.'' held not too
indefinite to be valid. Odd Fellows
Bldg. Ass'n v. Hogan, 28 Ark. 261.
51 See § 3012, supra.

52 32 Cyc. 514, title "Process''; 18
Encyc. Pl. & Pr. 965, title "Returns."
53 32 Cyc. 516, title "Process";
18 Encyc. Pl. & Pr. 969, title "Re-
turns."
Professor Sunderland pro-
nounces the conflict to be "utterly ir-
reconcilable." 32 Cyc. 514.

54 32 Cyc. 518, title "Process''; 18 Encyc. Pl. & Pr. 967, title "Returns."'

Having regard to the general law as just stated the return has been held conclusive in actions against a corporation of the facts recited of the particulars of service and the persons found or served,55 and impeaching affidavits or evidence are not receivable in the states noted below; 56 while others treat it as rebuttable in those particulars, though prima facie true,57 admitting affidavits or other evidence by way of impeachment 58 which must be clear and convincing to overcome the

[§ 3013 return.59 A prompt repudiation of the service is a factor of weight in considering the evidence.60 The federal courts do not follow the state doctrine that the return is conclusive, when inquiring of the jurisdiction in a case coming from the state court. 61 Generally under either doctrine, if the return appears to state conclusions and not facts, it is not conclusive as to them,62 or as to matters on which it is silent; 63 and is not conclusive and not evidence as to improper recitals included in it.64 Where substituted service was resorted to evidence aliunde cannot be received to supply a basis for such service which the record did not warrant.65 Although a return may not be regarded as conclusive of the recited fact, e. g., agency of the person served, in the trial court, yet it will be held conclusive on a collateral attack against the resulting judgment.66

59 Evidence held sufficient to impeach return as to person served and relation to corporation. Majestic Metal Bed Co. v. Mutual Furniture Co., 152 N. Y. Supp. 994. See also Parker v. Van Dorn Iron Works, 23 Ohio Cir. Ct. 444.

Especially when it showed other superior officers and return made no mention of them. Beattyville Coal Co. v. Bamberger, Bloom & Co.'s Assignee, 21 Ky. L. Rep. 830, 53 S. W. 31.

60 To be considered on the question of agency of the kind returned. Kramer v. Buffalo Union Furnace Co., 132 N. Y. App. Div. 415, 116 N. Y. Supp. 1101.

61 Though conclusive in the state court, it is not so regarded in the federal courts in cases coming from such state. Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 54 L. Ed.

272.

62 Return that service was made on one "who is the secretary and treasurer and chief officer in charge of the business of" defendant and that the president was absent, states a mere conclusion as to the chief officership and is bad. Stanley v. Sedalia Transit Co., 136 Mo. App. 388, 117 S. W. 685. Must show service in the statutory manner and may use the words of the

statute; but a recital of execution of the writ as the law directs" is not conclusive. Heath v. Missouri, K. & T. R. Co., 83 Mo. 617.

63 Not conclusive as to matters not stated, e. g., place of service and character of agent. Liblong v. Kansas Fire Ins. Co., 82 Pa. St. 413.

While the return is regarded as conclusive between the parties, liberality is indulged in going into the facts where it is not full and explicit. Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, 54 Atl. 334. A return not showing where service was made may be overcome by showing that it was invalid because made at the wrong place. Id.

64 Return that the officer served was "the officer in charge of said company's office and business in" the county of suit, is not evidence as to there being an office in the county, that being no proper part of the return. Kimsey & Dopson v. Macon Lumber Co., 136 Ga. 369, 71 S. E. 675. 65 Webster v. Iowa State Traveling Men's Ass'n, 165 Fed. 367.

66 New York & E. R. Co. v. Purdy & Adams, 18 Barb. (N. Y.) 574.

On collateral attack a finding of ju risdiction had on due process cures a bad return which did not show the relation of the person served to the cor

§ 3014. Defects, objections and amendments. A defect is merely the lack of some requisite to validity or perfection; therefore the question what constitutes a defect in writ, service or return should find answer in previous sections.67 Jurisdiction is not frustrated by the fraud of the person served in failing to apprise the corporation properly of the service; but in the event of a default it will be opened on a showing of such facts.68 It is a familiar rule of general law that fraud, accident or mistake in obtaining the jurisdiction constitute grounds for relief against or for a collateral attack on it.69

What has been said in the outset of the last preceding section is true also of objections and amendments. The law involved is not peculiar to corporations. The applications of it alone are peculiar to them. The general practice in taking objections and allowing amendments must be followed, and it varies greatly in the different states. At common law objection for any matter of defect in the service or the return but not in the writ would have been by plea in abatement to the person of the defendant with a prayer whether it should answer the declaration; and for any matter of defect in the writ or going to its validity the plea would have been in abatement of the writ itself with a prayer that it be quashed.70 Pleas in abatement and to the jurisdiction will be more fully discussed hereafter, and attention is invited thereto." The modern practice with the modern forms of process, and especially under the codes is usually by motion to quash the service or return, which motion is supported by a showing of the facts needed to give to plaintiff "a better writ"; or to move or sue for relief from the resultant default judgment in such manner as the practice admits, making the requisite showing and urging the insufficiency of the service to give jurisdiction; 72 or by a proper saving of the question and an appeal or writ poration. Ford v. Delta & Pine Land Co., 43 Fed. 181.

On appeal it was held that a return of service on a local agent with corroborative testimony in the record, that being good service if made, is enough to make a prima facie valid judgment which cannot be impeached by motion after term to vacate the judgment. National Metal Co. V. Greene Consol. Copper Co., 9 Ariz. 192, SO Pac. 397.

67 See §§ 2985-3012, supra.

68 Allen v. Dallas & W. R. Co., 3 Woods 316, Fed. Cas. No. 221.

69 See generally Freeman on Judg. ments; Black on Judgments.

70 See Stephen on Pleading (Tyler's Ed.), p. 85.

71 See § 3069 et seq., infra.

72 Delaware. Proper practice is a motion to set the return aside where service is on an officer not contemplated by statute, or by petition and affidavit where return is of service on a director and the president resides in the state; but in the latter case the

In the Arizona case it appears that the statute declares the return to be prima facie true.

[§ 3014 of error.73 Some of the states retain the plea in abatement as a means of attacking the writ or summons itself, as for a variance from the complaint, or where the ground of objection lies in proof extrinsic to the writ and the return; 75 while in Maryland a plea to the jurisdiction goes only to jurisdiction over the subject-matter, and a motion reaches a service at the wrong place or on the wrong person; 76 and in those states a plea and a motion cannot be used interchangeably," or the office of a plea accomplished by a mere opposition to