15 Kan. 274 | Kan. | 1875
The opinion of the court was delivered by
On the 19th of March 1874, defendant in error commenced an action in the district court of Clay county against the plaintiffs in error, who are husband and wife, to foreclose a mortgage. The petition set forth a note signed by the husband, and alleged the execution of a mortgage by both. On the 21st of March a summons was duly issued, and returned on the 28th with an indorsement of personal service by the sheriff upon each of the defendants. Afterward, and at the May Term of court, the husband making no appearance or defense, the wife makes a motion to set aside the return of service upon her, and files in support thereof two affidavits, her own and her husband’s. In her affidavit she swears that no copy of the summons was ever served upon her, and that she had no knowledge of the pendency of the action until the time of filing the motion. He swears that the sheriff gave’him two copies of the summons, one directed to himself, and one directed to his wife, and requested him to deliver the latter to his wife; but that he did not deliver it. This statement is repeated twice in the affidavit, and with only this difference: the first time he swears that, on “the- day of March 1874” the sheriff' delivered to him “two copies of a summons in the above action;” the second, that “on the 27th day of March 1874” the sheriff delivered to him “two copies of a summons in the