202 Ky. 494 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
In 1912, J. H. Hickman and others filed their petition with the conntv court of Daviess county seeking to establish a drainage district for the straightening of Panther creek, and draining its contiguous lands. The proceedings progressed and the appointed viewers filed their report showing the persons whose lands would be affected, upon which summons was issued for each of them, including appellee and plaintiff below, George A. Fischer. The summons for appellee, which included the names of a great number of other landowners, was issued by the clerk of the Daviess county court on July 24,1913, and the return of the sheriff thereon shows that it was executed on appellee by B. T. Lancaster, a deputy sheriff, on August 16, 1913. Thereafter the proceedings progressed and a number of appeals on different branches thereof were prosecuted to this court and finally appellee was assessed as his proportionate part of the cost of the ditch the sum of $813.40. The drainage commissioner was about to take the necessary steps to collect from appellee that sum, or to issue bonds against his lands for it, when he, on February 24, 1922, filed this equity action in the Daviess circuit court to enjoin the officer from collecting the assessment 'or any part of it, or taking any steps to make it a lien against plaintiff’s property upon the ground that he was never served with notice of the proceedings to establish the drainage district, nor did he enter his appearance therein or in any manner become a party thereto. He did not allege in his petition that the county court judgment against him was procured by any fraud of any of the parties, nor by any mistake of the officer in returning the summons as executed on him. A demurrer to the petition was overruled and an answer was filed denying the allegations of the petition and affirmatively pleading the issual of a summons for appellee in the county court proceedings and its service on him by the sheriff of the county through'a deputy sheriff; and the summons with the-officer’s return was filed as' an exhibit with the answer. Appellee for the first time in his reply averred that the return of the officer showing the service
It will be observed that this action was brought in a different court from the one in which the attacked judgment was rendered, and it seeks to annul that judgment, notwithstanding' it affirmatively appears in the record of that proceeding that duly executed service on the plaintiff was made therein. There is much confusion in the law, and from which the cases in this court are not exempt, as to the proper procedure in such cases, and as to the extent, if any, of the relief which may be granted, and especially so when the attack is made in a different court from the one in which the alleged spurious judgment was. rendered. Since, however, the Daviess circuit court had jurisdiction to issue injunctions of the character prayed for, and since plaintiff selected his own forum to obtain the relief to which he claims he is entitled, we have concluded not to enter into, a discussion of the doctrine relating to collateral and direct attacks of judgments, or the court in which they should be made. The adoption of a particular remedy for the accomplishment of a particular purpose does not necessarily mean that the court would not have jurisdiction, although the adopted remedy was not the appropriate one for the purpose, and in such case the situation is unlike a resort to a court having no jurisdiction of the adopted remedy, but is only an erroneous procedure and is, therefore, not followed by the same consequences that result from an application to a court having no jurisdiction to administer the remedy. In the latter case even consent can not confer jurisdiction, but in the former it may do so. We will, therefore, in this opinion waive all such questions and determine the case upon its merits as developed by the evidence heard on the trial.
In contradicting in his testimony the return of the sheriff on the summons that was issued in the drainage district proceedings, and in denying that he was ever served therein, plaintiff was asked, “Now can you say that there was no service of process served on you in that action?” and he answered, “No, sir, there was no such paper served on me in that case, because I always keep
On the other hand, the deputy sheriff who made the return testified that he had been serving in that capacity between nine and ten years, and that his territory included the residence of plaintiff; that there was a very great number of persons to be served in the Panther creek drainage district proceedings, as is shown by the copy of the summons filed with the record, and that he would sometimes be away from the sheriff’s office in Owensboro for two or three days at a time and would deliver the
Section 3760 of our statutes provides, in substance, that no fact officially stated by an officer in respect to a matter about which he is legally required to make a statement shall be called in question “except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer, unless in a direct proceeding against the officer or his sureties.” As we have seen, no allegation of fraud on the part of any. one benefited, or mistake on the part cf the officer, was made in the petition, but if we treat that omission as supplied by the allegation of a mistake on the part of the sheriff in this ease made for the first time in the reply, as being unnecessary to sustain the action,. we are then confronted with the question as to whether the evidence was sufficient to grant .the relief sought. On that question the text in 15 R. C. L. 774, says: “Even where the power of equity to grant relief in the case of a false return is conceded (which we have done for the purposes of this case), it has been held that in such cases a court should not act except upon clear, satisfactory and convincing-proof.” Dealing with the same'question of practice, this court adopted the rule of the text in the case of Utter, Adams and Allen v. Smith, et al., 25 Ky. L. R. 2272, wherein it used this language:
'. “When a judgment has been obtained upon process duly returned executed by one who is conceded to be a person authorized to execute it, the court*499 should not set aside such a judgment unless the evidence is clear, positive and convincing that it was obtained by the fraud of the plaintiff or by the mistake of the officer in executing the summons. Otherwise judgments settling the rights of the parties and giving remedies for the enforcement of these rights could never be regarded as permanent, but would be liable to be set aside and the rights settled thereby be reopened, when the facts, not only appertaining to the service of the summons, but the merits of the controversy, had been forgotten, or rendered unavailing by reason of the death of the parties or their witnesses.”
We still adhere to that.rule as vrell as the reasons therefor, and applying it to the testimony in this case, we have no hesitancy in declaring that it was insufficient to impeach the return made by the sheriff, especially in the light of the latter’s testimony in support of it.
It is, therefore, our conclusion that the court erred in granting the injunction, and the judgment is reversed with directions to dismiss the petition.