56 Minn. 351 | Minn. | 1894
This is an appeal from an order setting aside a default judgment on the ground that the summons had never been served on the defendant.
The proof of service was the affidavit of one Belknap that he served the summons and complaint, personally, on the defendant, in the city of St. Paul, on November 9, 1891. It is settled that the proof of service, even when consisting of the return of an officer, is not conclusive, as against direct proceedings in the action to set aside the judgment. Crosby v. Farmer, 39 Minn. 305, (40 N. W. 71.)
But such proof should ordinarily be upheld, unless opposed by clear and satisfactory evidence. Jensen v. Crevier, 33 Minn. 372,
It is also to be noted that plaintiffs offered no evidence in rebuttal, except tbe affidavit of tbe party who claimed to have made tbe service, in substantially tbe same terms as bis original affidavit on tbe summons, and without any reference to tbe particular place where, or tbe circumstances under which, be claimed to have made tbe service. Tbe affidavit of tbe deputy sheriff to whom tbe execution was delivered in August, 1893, is of little or no importance.
Tbe delay of tbe defendant in moving to set aside tbe judgment is explained by bis affidavit that be was not aware that any action bad been commenced until shortly before be made tbis motion.
Upon tbe whole record, we could not say that the court was not justified in setting tbe judgment aside.
Order affirmed.
(Opinion published 57 N. W. Rep. 1060.)