77 Neb. 49 | Neb. | 1906
This was a proceeding to revive, on motion and affidavit, a judgment entered in the county court of Butler county,
It is conceded, that, from the showing made in the affidavits, defendant was not a resident of Butler county at the time the summons was attempted to be served, but the contention is that proof of the failure of service of process can not be made on ex parte affidavits. It is not necessary to determine whether or not this objection was waived in the county court by filing counter-affidavits on behalf of the plaintiff, as we think that the provisions of section 370 of the code are sufficient to permit the use of affidavits either in attacking or in supporting the return of an officer on a summons in a proceeding for revivor. This section provides: “An affidavit may be used to verify a pleading, to prove the service of a summons, notice, or other process, in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion,, and in any other case permitted by law.” In Walker v. Lutz, 14 Neb. 274, the return of a sheriff to a summons that he had served it by leaving a copy at the defendant’s usual place of residence was attacked by defendant in a motion challenging the jurisdiction of the court. The motion was supported by affidavits and sustained by the district court. The judgment of the district court was affirmed, and the principle announced that “a sheriff’s return to a summons that he served it by leaving a copy at the defendant’s usual place of residence is not conclusive as to the fact of residence, but the defendant may show that the place where the copy was left was not
We therefore recommend that the judgment of the district court dismissing the petition, in error be reversed and the cause be remanded for further proceedings.
By the Court: For the reasons given in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause be remanded for further proceedings.
Reversed.