| Or. | Dec 15, 1876
This is a proceeding under the statute for leave to issue an execution on a dormant judgment. The appellant herein objected in the court below to the granting of the motion for leave to issue execution for the reason-that it appeared by the record of said dormant judgment, that there had been no proper service on the defendant Barnhart to give the court jurisdiction of his person, so as to render a valid judgment against him.
“I hereby certify that I served the within summons by delivering a certified copy of the same; together with a copy of the complaint, to Wm. H. Barnhart, this tenth day of December, 1855.
“Wm. H. O. Mxmjcan, Sheriff.”
There is no other evidence of the service of process on said Barnhart, in the judgment-roll. This service is indorsed on the summons.
It is claimed by the appellant that such a return did not give the court jurisdiction: 1. It is claimed that this return has no' venue; 2. It does not show it was'served by the sheriff of the county; 3. It does not show that a certified copy of the complaint was served; 4. It does not show in what county or state the process was served.
It is claimed that this judgment is absolutely void and not voidable, and that the judgment has no validity for any purpose, and can be attacked collaterally and impeached for want of jurisdiction of the court when offered-in evidence in this ease, provided this shall be regarded by the court as a collateral attack. But it is insisted that this is a continuation of the same suit, and that this is a direct, and not a collateral attack, and that there are no presumptions which will prevent inquiry behind this judgment in this case, and that the regularity of the proceedings of the court in rendering this judgment are as subject to inquiry now, as on an appeal. In order to determine the effect that should be given to this judgment, it will be necessary to inquire what defense was interposed in this case.
This is a proceeding in the nature of a scire facias, which is a judicial writ to obtain execution on a judgment, and issues out of the court where the record is, and the same defenses only can be pleaded in this proceeding that were pleadable to a scire facias. The only pleas to a scire facias were either nul iiel record, or payment, accord and satisfaction, or some matter which showed that the judgment had been discharged. It is a maxim of the law, says Mr. Chitty, “that there can be no averment in pleading against the
The only defense then that can be set up to this judgment is either that there is no such judgment, or that it is in some way discharged. (1 Chitty Pl. 485; Freeman on Judgments, sec. 445; 13 How. Pr. 178" court="N.Y. Sup. Ct." date_filed="1856-09-15" href="https://app.midpage.ai/document/lee-v-watkins-5455501?utm_source=webapp" opinion_id="5455501">13 How. Pr. 178.) It makes no difference whether this is considered a continuation of the original case or a new case on the judgment. For if this judgment were sued in another court of this state, and was offered in evidence, it would not be subject to be questioned for want of jurisdiction, unless such want of jurisdiction appeared in the record and showed that the pretended judgment was absolutely void, and consequently no judgment.
In this case we think, therefore, that the same presumptions in favor of the judgment obtain which would be entertained in its favor were it attacked collaterally. And we conclude from the well established rules on this subject that the presumptions obtain in favor of the validity of a judgment in all cases where its authority is invoked, unless the same is directly attacked by appeal or some other legal mode which opens the judgment' and authorizes inquiry into the facts which were the subject of the judicial investigation and determination as the foundation of the judgment. As an authority to maintain the position that the facts on which the judgment was founded may now be open to inquiry, the appellants rely on the authority of the case of Hunsaker v. Coffin, 2 Or. 107" court="Or." date_filed="1864-09-15" href="https://app.midpage.ai/document/hunsaker-v-coffin-6893129?utm_source=webapp" opinion_id="6893129">2 Or. 107. In that case the summons required the defendant to appear forthwith, and was therefore in direct contravention of the statute, and was void, and the service of such a summons would be simply void, and not an irregularity. So in that case the judgment was void, because on inspecting the judgment-roll it was found that there was no legal summons. In that case there is no recital in the record that the defendant had been duly summoned, so there was no record showing that the court passed on the question of jurisdiction except the presumption arising from the court having entered a judg
In the case of Hunsaker the court was evidently right in coming to the conclusion that the judgment was void in refusing the motion or execution. In that case there was no attempt to attack the judgment for any other reason than that it was null on its face, and the remark of the court that the case stood in a different position as to presumptions in its favor, than where the attack is collateral, was not necessary in giving judgment against the motion, and was obiter, for the judgment was void and could be used for no purpose. The case now before the court is different. There is a complaint and summons and an attempted service which is as follows:
“I hereby certify that I served the within summons by delivering a certified copy of the same, together with a copy of the complaint to Win. Barnhart, this tenth day of December, 1875. ¥m. McMillan, Sheriff.”
This service is defective in not stating enough to show on its face that all the requirements of the statute in making the service had been complied with, nor. does it show but what, all these requirements had been complied with. It may have been in Multnomah county, by a sheriff of that county, and the copy of the complaint may have been properly certified. Now the question is, was this a defective service or no service at all ? The service was in the record, and before the court. The court is presumed to have passed on this defective service and held it sufficient. Such a holding may have been erroneous, and could have
Judgment of the court below affirmed.