4 Wash. 109 | Wash. | 1892
The opinion of the court was delivered by
On the 10th day of June, 1890, respondents brought an action against appellant in the superior court of King county, for the sum of $1,196.75, alleged to be due on an unbalanced account, together with interest at the rate of ten per cent per annum from May 17,1890. Summons was issued and in due time returned and filed in the office of the clerk of the court, having endorsed thereon the return of the sheriff to the effect that said summons had been personally served on the defendant Thomas Johnson, plaintiff herein; on a day specified. The time for answering having expired, the default of the defendant Johnson was ordered entered by the court, and thereupon judgment was rendered and entered by the court in favor of H. P. Gregory & Oo. against said Thomas Johnson for $1,211.70, and costs of suit. Execution was issued on said judgment and the lots of land described in the complaint
Upon this question there is without doubt a very great conflict of authority, the courts of different states having established different rules in conformity with their respective ideas of the best manner of subserving public policy and protecting private rights. In this opinion we will not essay a review or analysis of the cases reported on this question, all of which that were available we have exam
It was said by the supreme court of Tennessee, in Ridgeway v. Bank of Tennessee, 11 Humph. 523, that “The action for false return is an inadequate remedy for such an injury; for it might be that, after a ruinous sacrifice suffered in the payment of a judgment so recovered, and the delay and expense of litigation with the officer who made the false return, he might be unable to make the proper indemnity, or succeed in evading his liability.” Of course the presumption is that the'return of the officer is correct, and the proof of its falsity should be clear and convincing, but it is going too far to hold that such presumption is absolutely conclusive.
The judgment will be reversed, and the defendant given an opportunity to answer.
Stiles and Scott, JJ., concur.
Hoyt, J., concurs in the result.
Anders, O. J., not sitting.