(аfter stating the facts). This court is committed to the doctrine that an officer’s false return of service of prоcess shall not preclude the defendant from showing the truth, in a proper proceeding, to be relievеd from the burden of a judgment or decree based thereon. One who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense. State v. Hill,
As will appear from our statement of faсts, the mortgage foreclosure decree which is sought to be set aside in this case recites that the defеndants were duly served with summons in the time and manner provided by lаw, but made default. This recital is prima facie evidenсe of the facts stated, but, under the principle of law decided in the cases above cited, the defеndants may introduce testimony to contradict the recital of the decree; but the burden of proof is upоn them. The return of the officer in the foreclosure suit shows that the defendants in that action, J. W. Karnes and Mary Karnes, who are the plaintiffs in the case at bar, were duly served with summons in the time and manner prescribed by law. This constitutеd the official oath of the officer as to the facts stated in his return.
We are of the opinion that the plaintiffs in this action have not satisfactorily met the burden lаid upon them in contradicting the return of the officer as to the service of summons upon them. Mary Karnes, the wife of J. W. Karnes, admitted that she was served with process by thе deputy sheriff at her residence in -Berryville, Carroll County, Arkansas. J. W. Karnes admits that his wife told him that the sheriff had left a paper with her, but that she did not say that any was left for him, and that he never saw the paper.
Thus it will be seen that Mrs. Karnes аdmits in her testimony that service was had upon her, and J. W. Karnеs admits that he was informed by his wife that a paper had’been served upon her. If he had used reasonable diligеnce, this fact would have put him in possession of the fact that he had been made a defendant in the foreclosure suit. In any event, ,the evidence offered by thе defendants is not sufficient to overcome the offiсial return of the sheriff. At most, it only shows that, instead of serving the summоns upon J. W. Karnes personally, it was served upon him by leаving a copy at his usual place of abode with sоme person who was a member of his family, over fifteеn years of age, as provided in the 3rd subdivision of § 1144 of Crawford & Moses’ Digest.
It follows that the plaintiffs did not’show facts sufficient to ovеrcome the return of the service of summons upon them in the foreclosure suit and the recital containеd in the decree that they were duly served with summons; and they аre therefore not entitled to set aside the foreclosure decree, regardless of the fact of whether or not they might have a meritorious defense to that action. It follows that the decree must be affirmed.