65 Neb. 274 | Neb. | 1902
The decision assailed by this proceeding is obviously correct. The action was brought by Willard Dutton upon
But it is contended for defendants that if Evans was a de-facto officer his right to act as deputy clerk was challenged in a direct proceeding, and that the challenge, in view of the facts above recited, should have been sustained. This argument is manifestly unsound. The attack upon the jurisdiction of the court was not a direct, but a collateral attack upon the authority of the acting deputy. The title to an office is directly assailed only in an action or proceeding brought by the state or a private claimant to oust the incumbent, or when, in a suit to recover salary or emoluments, the incumbent’s character as a de-jure officer is put in issue.
On behalf of the defendant J. D. Haskell it is insisted that the service of the summons sent to Custer county should have been quashed, because the copy delivered to him was not certified as required by the statute. The original summons is in due form and the certificate of service is sufficient. We find no evidence in the bill of exceptions tending in the remotest degree to show that the officer’s return is false; and in the absence of such showing, we must presume that the process was properly served.
The judgment is
Affirmed.