20 S.D. 169 | S.D. | 1905
This is an appeal by the plaintiff from an order vacating and setting aside a default judgment entered in the circuit court of Brown county on the 17th day of December, 1900. The notice of motion was diily given in April, 1904, that the defendant would move the court on May 9th for an order vacating and setting aside the judgment, and that said motion would be made on the ground that no service of summons in the action had been made, and was based upon affidavits served in connection with the motion. The court on the hearing granted the motion vacating and setting aside the judgment, and also ordered that the defendant have leave to answer in the action. The theory upon which the counsel for the defendant proceeded in making their motion seems to have been that, inasmuch as there was no service of summons, the judgment was a nullity, and that the only order that the court could properly make therein was an order vacating and setting aside the same. Annexed to the notice of motion were the affidavits of the defendant, his wife, and Mr. Thomas Sterling, and on the hearing of the motion the plaintiff read, not only the affidavit made by the person serving the summons, but his corroborating affidavit, and the affidavits of E. F. McCoy and Judge A. W. Campbell.
It is contended by the appellant that the original affidavit of Mr. Lyons attached to the summons proves that the service was properly made, and that the affidavit of said Lyons who' served the summons, read on the hearing, giving, as it does, in detail the manner of his service, strongly corroborates the original affidavit; that the affi
It is contended by the appellant that the rule now generally prevailing is to the effect that proof of service and the certificate or affidavit of service may be traversed, yet that the rule is firmly established that the return is strong evidence of the facts therein properly recited and should be upheld, unless opposed by clear and satisfactory proof; that the presumption in favor of the return of the officer or person making the service, aiid the recitals in the judgments, thoughnot absolutely conclusive, can be overcome only by tiie most clear and satisfactory evidence that the service, as returned by the officer or party serving the summons, was not actually mac'e; and that the evidence in this case is not sufficient to overcome the proofs made as to> the fact that the service was actually made as detailed by the party making the service, with the corroborating evidence of McCoy and Judge Campbell, as to what occurred between them and the defendant subsequent to the entry of the judgment. Undoubtedly the rule as stated by the appellant is the correct rule, and is thus stated in Bank v. Ridpath, 29 Wash. 687, 70 Pac. 139: “The return of service, either by a sheriff or by a disinterested person authorized by law to make it, is prima¡ facie
The original affidavit of B. F. Lyons as to the service shows such a service as is prescribed by law, and is not questioned by;- the defendant. As before stated, the said Lyons made an affidavit which was read upon the hearing of the motion, and which is in substance as follows: That the affiant distinctly remembers the facts and circumstances surrounding the service of the said summons; that he went to the home of said defendant on said 3d day of November, 1900, for the purpose of serving the same; that he was unable to find said defendant in person at or about his said dwelling house; that he inquired of Hanna Liebig, his wife, for the whereabouts of said defendant, and was informed by her that he was absent; that at the time the wife of the said defendant was not in the dwelling house, but was outside and near the same, and that, upon being informed that the defendant was away from home, he then and there served said summons by delivering to and leaving with her a true copy of the same, and then and there fully explained to her what the same was; that after making such service, upon the same day,
The only evidence directly tending to contradict the return of the officer and the recitals in the judgment was, as before stated, the affidavit of Mrs. Liebig, who denies that the summons or any other paper was served upon her on the 3d day of November, 1900, or at any other time, and that the first notification or intimation whatsoever that she had that B. F. Lyons claimed to have left a summons in the above-entitled action with her was when her husband informed her, during the fall of 1903, that the said Lyons had made an affidavit to that effect; and she further states that, if said affidavit was made by the said Lyons, the same is wholly false and untrue. There is quite a long affidavit of Mr. Sterling, one of the attorneys for the defendant, which gives a detailed account of a number of cases pending against the defendant; and he states that he never heard of the action resulting in the judgment in Brown county sought to be set aside, and that in his various conversations with the attorney for the plaintiff and E. F. McCoy, the agent of the plaintiff, in regard to the settlement of matters beween the plaintiff and the defendant, no mention was ever made of the judgment in Brown county, and that he believed that, if the summons had been served as stated by Lyons, the defendant would have brought it to him for the purpose of answering and defending against the said action. This affidavit, it will be observed, presents but slight evidence in corroboration of the affidavit of Mrs. Liebig.
The motion was not addressed to' the discretion of the trial coitrt, and hence there was no presumption of the exercise of any such discretion. The motion, as will be observed, was based upon the theory that the judgment was absolutely void for the reason that the defendant had never been served with process. The only question, therefore, for the trial court to determine was as to whether
It is further contended that the trial court erred in granting leave to file an answer in the case, inasmuch as such relief was not asked for in the motion, and no verified answer was served with the motion papers; but, in the view we take of the case, we do not deem it necessary to pass upen that question at this time.
The order of the circuit court is reversed.