V 28 FEDERAL rcnronrm.
The complainants set down this plea in abatement for argument,
. and also moved to strike said defendant’s motion from the files, be-
cause in controverting the truth of the returns it presents an issue of
fact which cannot, in the regular and orderly mode of judicial pro-
ceedings, be raised and tried on motion and by ex parte affidavits;
because the statement of facts accompanying and supporting its
‘ motion set up and rely upon matters dehors the return, which should
· properly be raised by plea in abatement; and because the plea in
abatement, embodying precisely the same extrinsic facts relied on to
sustain the motion, overrules the motion.
Two grounds of objection are taken to the marshal’s return by the
motion of the American Bell Telephone Company: The first that
"said return is untrue in fact;" and, secondly, that “it is insujlcient
in law,"—one presenting an issue of fact, and the other raising a
question of law upon the face of the return. The defendant’s plea
in abatement, and its motion to set aside the marshal’s return or
quash the service, because it "ls untrue in fact," are identical, and `
present precisely the same issue, and on the same state of facts.
Both the plea in abatement and the first ground of said motion seek
to controvert the truth of the return, as to matters of fact stated
therein, on grounds that do not appear upon the face of the return;
both dispute the truth of the return on precisely the same extrinsic
facts. Where the invalidity, irregularity, or defect in the service of
the writ appears upon the jbce of the return, a motion to quash the
service or abate the writ is the proper mode of bringing the matter T
to the attention of the court; but where the objection does not appear
upon the face of the papers, the better rule of practice, where it is
sought to question or dispute the facts stated therein, is to do so by
plea in abatement, on which an issue may be regularly taken and tried.
Halsey v. Hurd, 6 McLean, 14; Rubel v. Beaver Falls Cutlery C0., 22
Fed. Rep. 282, 283.
It is not denied that objections to the regularity or validity of the
service, not appearing on the face of the return, are sometimes taken
by motion to dismiss or set aside the service. Thus, in Harkness v.
Hyde, 98 U. S. 476, the illegality of the service, which did not ap-
pear upon the face of the return, was presented by motion to dismiss
the suit, which was treated by_ the court as a motion to set aside the
service, and was sustained. But the general rule of practice is to
raise such issues of fact by plea in abatement; and in this case, as
the defendants motion and plea in abatement present identically the
same issue, and on the same state of facts, so far as relates to the
truth of the return, it would seem to be the better practice, and most
correct course, to have that question considered and determined on
the plea rather than the motion, which is an application for summary
relief based upon ea; parte affidavits. The court will accordingly
overrule so much of defendant’s motion as seeks to dispute or contro-
vert the truth of the facts stated in the marshal’s return, but will
leave said motion to stand so far as it raises the question of the legal