Barbour v. Newkirk

| Ky. Ct. App. | Jan 23, 1886

JUDGE HOLT

delivered the opinion oe the court.

This is a transitory action for debt, brought ini the Louisville Chancery Court, on April 19, 1877, and dismissed by it - for want of jurisdiction in December, 1883. It was originally brought against theappellee alone. Subsequently, another party, who-was served with a summons in Jefferson county,, was made a defendant, but the appellant dismissed', the action as to him, and the question presented is,, whether the court properly held that the appellee' was not before the court. At the institution of the-action a summons was sued out to both Jefferson and Oldham county, but they were never returned.. The attachment, which was then also issued, wasi levied upon a tract of land belonging to the appellee in Jefferson county, but was not served upon. Mm. Subsequently, another summons was issued to' the last named county, but it was never returned. On December 8, 1877, another was sued out, and a. special bailiff, properly deputized by the marshal of the court, made, and verified by his oath, this return upon it:

“Executed January 5, 1878, upon Joseph New-kirk, by delivering to him a copy of the within, summons. J. W. Bennett, S. B.”

Subsequently, the appellee appeared and moved to' quash the service and return of the officer upon the ground that it was served upon him in Oldham county, and filed several affidavits in support of the motion; but it was not then decided.

In January, 1879, another summons against the appellee was returned by the sheriff of Jefferson county, with the information that he had found him in the county, but could not get near enough to him to read the summons to him or give him a copy.

After this a warning order was entered against the appellee as a non-resident. He appeared, reserving: his objection, however, to the jurisdiction, moved to> set the order aside for want of jurisdiction, and filed affidavits showing that the grounds upon which it had been made were not true. His motion, was sustained. On November 23, 1883, he again objected to the jurisdiction of the court, and for the alleged want of it moved to dismiss the action and discharge the attachment.

In each instance' where he appeared in court he objected to the jurisdiction, and the motions by him to quash the return upon the summons and to set. ■aside the warning order did not confer it. They were all based upon an alleged want of jurisdiction. A party enters his appearance if he does any act from which it may be presumed that he acknowledges the jurisdiction of the court. These motions, however, denied it. The return by the special bailiff was sufficient. It appears from it how and when it was executed, and this is all that section 49 of the Civil Code requires. It is urged, however, that it was conclusive, and that nothing dehors the officer’s statement can be received to show that it is not true.

As the marshal of the court had the power to execute process co-extensive with the State, it may be said that the affidavits showing that it was in fact executed upon the appellee in Oldham county, were not, in fact, contradictory of it. But, aside from this, there is no doubt but that the appellee had the right to question the return as a mistake, and show that he was not, in fact, served in Jefferson county. Suppose that a summons be returned as executed upon A, the defendant to a suit, when in fact it was served upon B; can not the former show this fact? It is true there are cases holding that an officer’s return can not be questioned collaterally; that it can not after judgment, and in the absence of fraud by the party benefited by It, be impeached by a chancery proceeding, to which the officer was not a party. In these cases, however, -rights had accrued or vested. The stability of a judgment or the muniments of title depended upon the verity of the record. To question collaterally .the action of the officer under such circumstances would impair public confidence in judicial records.. There was no judgment, however, in this case; and to deprive a defendant of the right to question the-return before any right had accrued, would create a. rule devoid of reason, and creative of litigation.

When the special bailiff served the summons upon the appellee, the latter was residing upon Diamond Island, in the Ohio river, and it was executed upon him there. It is within the Kentucky line, but it-appears to have been at times a disputed question whether it belonged to Jefferson or Oldham county,, or in part to each. This arose from the fact, that although the Kentucky line is low-water mark upon the Indiana side of the river, yet the act establish ing Oldham county defined its boundary as beginning “at the mouth of Pond creek (which is upon the Kentucky side) opposite Diamond Island;” and after running a series of courses and distances to the. Gallatin county line; “thence along the Gallatin county line to the State line on the Ohio river; thence down same to the point of beginning.” The beginning point, h#wever, being fixed, the line to close the’survey must be run at a right-angle, or in other words, and reversing it, from the mouth of Pond creek across the river at a right-angle to low-water .mark upon the opposite shore.

The affidavits filed by the appellee stated unequivocally that the house where the service was made was in -Oldham county; and that if a line at a right-angle with the river were drawn • across it from the point where the dividing line of the two counties struck the river, the house would be left in Oldham county; and that even if the line between the two counties were continued in the same course across the river, it would leave the house still farther in Oldham county. It appears that the land where the house was situated, and which belonged to the appellant Barbour, was assessed by him in 1877 in Oldham county; that he had sworn in a legal proceeding that it was in that county, and that the parties to this action so regarded it. The act of the Legislature of March 6, 1878, declaring the island to be a portion of Jefferson county, and that it had been such since the creation of the last-named •county, was passed subsequent to the service of the summons, and can only be regarded as declaratory of the county location of the island from the enactment of the statute.

Whether the summons was served in the one •county or the other, was a question of fact upon which the lower court has passed;, and although the appellant may lose an honest debt; yet we do not feel authorized to disturb its conclusion.

Judgment affirmed.