166 N.W. 139 | S.D. | 1917
On and prior to the 30th day of November, 1910, the respondent in this action was the owner in fee of 80 acres of land in B-ro-wn county. On s-aid date a certain judgment was entered in a justice court in said county in an action wherein respondent was the defendant. Thereafter said judgment was docketed in the circuit -court of said' county, execution issued' thereon, and the s-aid 80 acres of land' levied1 upon and sold thereunder. This -sale took place on the 19th day of June, 1911. The appellant R. D. Alway was the plaintiff in said; action and the purchaser at the said execution sale. The other appellants acquired interest -in said land as grantees of the said Alway. The
The regularity of the proceedings subsequent to the entry of the said judgment in the justice court are not questioned, so that the first question to be determined on this appeal is whether the summons was in fact ever served upon the defendant in that action.
The only service of the said summons that was ever attempted to be made on the defendant was the leaving of a copy thereof with 'the defendant’s mother at her residence in Liberty township, about four miles from the village of Hecla, in said Brown county. Respondent claims, and the court found as a matter of fact, that the respondent did not live with his mother at the time of such ■attempted service; that he was not at that time a member of her family, nor she of his; and: that the said justice court never acquired jurisdiction of him. And the trial court further found that the sheriff never served upon the said' defendant any notice of his attempted levy under the said execution, and never attempted to take possession of the real estate so attempted to be levied upon by him, and that the defendant (respondent herein) never had' any knowledge of the said action in the justice court, or of the said attempted execution sale, or knew 'that any of the defendants in this action were claiming said real estate or any interest therein until in the spring or summer of 1914 and shortly prior to the commencement of this action.
It is contended by appellants that the evidence that the' summons was not served is1 insufficient to overcome the return of the sheriff showing the summons to have been properly served. Appellants recognize the rule that this court will not disturb a
“There is both reason and authority for holding that there is a wide distinction to be drawn between the recital in the officer’s return of matters presumptively within his personal knowledge and the recital of matters, as in this case, not presumptively within such knowledge. The time upon which service was made, the county where made, the manner of service, were all matters presumptively within the personal knowledge of the officer. But the recitals in the various returns that Purmort was ‘the foreman of the defendant company,’ ‘the agent of the defendant company,’ the resident agent of the company,' etc., were recitals of matters not presumptively within his knowledge, hut of matters about which an officer must determine the facts upon the best information at hand at the time, which information came in this case largely from interested parties. And we are aware of no decision holding that his return as to such finding of fact cannot 'be contradicted when properly attacked. In the case of Bond v. Wilson, 8 Kan. 231, 12 Am. Rep. 466, the court, in speaking of such return, says: ‘We know of no statute that makes a sheriff a final and exclusive judge of where a man’s residence is, or what is the age of a minor, or who are the ofñers of a -corporation, or where their place of business is; and when the statute made it the duty of the sheriff to a-scertain these facts, it did not make his return of such facts conclusive. Of bis -own acts, his knowledge ought to' be absolute, and himself officially responsible. Of such facts as are not in his special knowledge, he must act from information, which will often come from interested parties, and -his return thereof -ought not to be held conclusive.’ And to the same effect .are the following cases: Chambers v. Bridge Manufactory, 16 Kan, 270; Hanson v. Wolcott, 19 Kan. 207; Mastin v. Gray, 19 Kan. 468, 27 Am. Rep. 149; Walker v. Lutz, 14 Neb. 274 [15 N. W. 352].”
It is next contended by appellant that respondent is not 'entitled to maintain this action, even though the summons in the other action was not served; that it does not appear from his complaint nor from the evidence in the case that the judgment respondent is seeking !to have set aside was unjust or inequitable; or that he had any defense to the cause of action- sued upon. And in support of such conclusion- appellants cite Halverson v. Bennett, 22 N. D. 67, 132 N. W. 434; Kerr v. Murphy, 19 S. D. 184, 102 N. W. 687, 69 L. R. A. 499, 8 Ann. Cas. 1138; Lindberg v. Thomas, 137 Iowa, 48, 114 N. W. 562; Casey v. Smith, 36 S. D. 36, 153 N. W. 918; Schroeder v. Pehling, 20 S. D. 642, 108 N. W. 252, 129 Am. St. Rep. 952; Neligh v. Keene, 16 Neb. 407, 20 N. W. 277. But none of these are cases where no service whatever of the summons had ever been made. In- Kerr v. Murphy, supra, the distinction between a case where there has been no service of the -summons and one where the service is merely defective or' irregular is fully discussed and the authorities reviewed.
The judgment and order appealed from are affirmed.