Ketchum v. White

Jun 25, 1887
Reporters:
,
Before:
Reed
Reed, J.

i. judgment: original” notice: evidence. The judgment which plaintiff seeks to have set aside was rendered at the January term, 1881, of the circuit court of Emmet county. Plaintiff alleges in his petition that no original notice was ever , , . . ,, ,. . , . , ., served on him m the action m which it was rendered; also that, the promissory note on which it was rendered, or the greater portion of it, had been paid before the *195suit was ‍​‌‌​‌‌​‌‌​​‌‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​​​​​‌​​‌​‌​​​​​​‌‌​​‌‌​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌​‌‌‌‌​‌‍instituted. When the judgment was rendered, there was on file in the cause an original notice, on which was indorsed a return by the sheriff of Dickinson county, (which was the county of the plaintiff’s residence,) in which the officer certified that he had served the notice on plaintiff’s wife, who was joined as a defendant, by reading it to her, and delivering to her a copy, and that he had served it on plaintiff by reading it to his wife, a member of his family over fourteen.years old, and delivering to her a copy; plaintiff not being found in the county. Plaintiff does not dispute that a copy of the notice was left at his place of residence, but his claim is that it was not left with his wife, but with another person who was temporarily at his house, but was not a member of his family. He introduced in evidence the depositions of his wife, and son, who, at ‍​‌‌​‌‌​‌‌​​‌‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​​​​​‌​​‌​‌​​​​​​‌‌​​‌‌​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌​‌‌‌‌​‌‍the time was about eleven years old, and the person to wlioin he claims the copy was delivered, and they each testified that the notice was not read by the sheriff, and that the copy was not delivered to Mrs. Ketclium, but was delivered to the other person named. On the other hand, defendants introduced the testimony of the sheriff who made the service, and he testified that it was made in the manner recited in the return. In addition to this, it is shown that plaintiff’s wife wra(e to him informing him that the notice had been left at the house. This is substantially all of the evidence bearing on the question.

We think it is not sufficient to establish plaintiff’s claim. The return of the officer was made at the time of the transaction, and the strong presumption is that it correctly states what had been done. It was the act of a public officer who had no interest in the matter ‍​‌‌​‌‌​‌‌​​‌‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​​​​​‌​​‌​‌​​​​​​‌‌​​‌‌​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌​‌‌‌‌​‌‍except to perform the duties of his office. It is presumed that he knew what was requisite to the service of the writ, and, having undertaken to make the service, the presumption is equally strong that he performed the duty in the manner prescribed by law. And he clearly had no object in making a false return. On the other *196hand, the depositions of plaintiff’s witnesses were taken more than five years after the transaction to which they relate. There was nothing in the circumstances of the transaction to specially call their’ attention to it, or to fix the details of what was done in their minds. They doubtless gave their testimony honestly; but the particular matter in dispute, being but a mere detail of the business, is one about which they might easily be mistaken, and we believe they are mistaken. The fact that Mrs. Ketchum called the attention of her husband to the matter within so short a time is a ‍​‌‌​‌‌​‌‌​​‌‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​​​​​‌​​‌​‌​​​​​​‌‌​​‌‌​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌​‌‌‌‌​‌‍circumstance strongly tending to show that the copy was placed in her hands at the time.

2. —:-: tivereturn, While courts of equity will interfere to prevent the enforcement of judgments rendered without jurisdiction, they will not disturb adjudications which on their face appear to have been regularly entered, upon slight or unsatisfactory evidence. Stress is laid upon the fact that the return did not show that the copy of the notice was left at plaintiff’s usual place of residence, as required by the statute. (Code, §§ 2603, 2604.) But that is a matter which cannot be inquired into in a collateral proceeding. The circuit court,’ before rendering the judgment, was required to examine the return, and to pass upon the question of its sufficiency. Its determination that it was sufficient was an adjudication of that question, which, however erroneous, could, under the well-settled rule, be corrected only on appeal.

3_._,. amount* prayed for. The petition on which the judgment was rendered prayed for judgment for $200. ‍​‌‌​‌‌​‌‌​​‌‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​​​​​‌​​‌​‌​​​​​​‌‌​​‌‌​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌​‌‌‌‌​‌‍The judgment, however, was f°r an amount greater than that, and it is in-sisf;e(} that tiie judgment is void for that reason. But all that could be said is that the judgment is erroneous in that respect. It is clearly not void, and it cannot be collaterally attacked on that ground.

t. appeal : useiess costs, As appellee’s amended abstract contains much matter which was fairly abstracted by appellant, one-cost 0p pouting the same will be taxed to them. The judgment will be Affikmed. .