229 N.W. 923 | N.D. | 1930
On April 16, 1927, the plaintiff J. S. Odland as receiver of the First National Bank of Lansford took judgment against the defendant Selk on certain promissory notes. These notes were executed by Selk to the O’Keeffe Implement Company and by it negotiated to the First National Bank of Lansford. Proof of personal service of the summons and complaint upon the defendant was made by the affidavit of one Handy. No appearance was made on behalf of the defendant and judgment was entered against him by default. Thereafter the judgment in question was sold and assigned to one Huso by the receiver. Selk had lately gone through bankruptcy and had but little property. The notes on which the judgment in question was obtained were listed in the bankruptcy proceedings. In 1929 Selk inherited some property. By some arrangement with his co-heirs he took title to certain real property in the county in which he lived. He ’attempted to make a loan on this real estate and then discovered the judgment in question to be of record. He at once moved to have the same set aside on the ground that no service had been made upon him and that therefore the court was without jurisdiction. This motion was made before the judge of -the district cotut who had ordered the default judgment against him. The motion was made upon showing by affidavits. In his own affidavit Selk set forth the fact of his bankruptcy and his discharge in March, 1924, from all debts provable against his estate, including the liability on the notes in question; that he did not know that the notes had been assigned to and were owned by the First National Bank of Lansford; that no service of process had ever in any way been made upon him; and that he had no knowledge that any judgment had been taken against him until he attempted to make a loan upon his real property. He also filed the affidavit of his attorney who swore he had conducted the bankruptcy proceedings for him; that he had advised Selk as to the effect of the discharge in bankruptcy and that it was necessary to plead it in defense of any action brought on account of an indebtedness which had been discharged; that
A summons may be served by the sheriff of the county where the defendant may be found or by any other person not a party to the action. Comp. Laws 1913, § 7427. Thus service may be made either by an officer or a private individual and made either way it is good. Proof of service of the summons, and complaint or notice, if any, accompanying the same, if made by any other person than an officer, must be by the affidavit of the person who made it, and such affidavit must state the time, place, and manner of service. Comp. Laws 1913, § 7436. In the instant case service was made by Handy as a private person and his affidavit of service met the requirements of the statute. On the face of the record this service was sufficient and the court had jurisdiction. In many jurisdictions proof of service where made by a proper officer is conclusive after judgment and cannot be impeached in any manner. We do not approve of so strict a rule. In-any event, it would not apply in the instant case for the reason that service was not made by Handy as an officer. And whatever the presumption may be with respect to performance of duty by an officer, that presumption does not arise where an act is done by one in a private capacity. So there is no question but that in the instant case it was competent for the defendant to oontradict the proof of service. See Freeman, Judgm. § 1229; Marin v. Potter, 15 N. D. 284, 107 N. W. 970; Beery v. Peterson, 58 N. D. 273, 225 N. W. 798, supra. In this connection see also note in 124 Am. St. Rep. pages 756, et seq.; Pettis v. Johnston, 78 Okla. 277, 190 Pac. 681. “But even though a return of service may be contradicted, it is presumptively correct and can only be overcome by a clear and unequivocal showing. ... It would work the greatest mischief if after a judgment is taken it could be set aside upon the slippery memory of
It is so ordered.