176 P. 192 | Or. | 1918
Lead Opinion
“A very important part of the judgment roll is that containing evidence of the service of process, or the taking of such other steps as are necessary to give the court jurisdiction over the person of the defendant; and it may happen that this part has been omitted from the roll, or has never been filed in court at all, or as filed and incorporated in the roll, is defective, and not sufficient to sustain the jurisdiction of the court, when attacked on appeal, or by motion to set it aside, or even when assailed in a collateral action or proceeding. Then the question arises whether the omission may be supplied, or the error corrected; and if so, by what means. As a general rule, an officer who has made a return of process will be permitted to amend such return at any time. If the return upon the summons or other writ designed to give the court jurisdiction over the person of the defendant, is omitted or incorrectly made, but the facts really existed which were required to give the court jurisdiction, the weight of authority at the present time permits the officer to correct or supply his return until it states the truth, though by such correction a judgment apparently void is made valid. Though the*646 proof of the service of process does not consist of the return of an officer, the like rule prevails. Thus if a summons has been published in the manner required by law, but the proof of publication found in the files of the court is defective, the court may, on the fact of due publication being shown, permit an affidavit to be filed showing the facts, and when so filed it will support the judgment as if filed before its entry.”
1 Freeman on Judgments (4 ed.), § 89-b; Hefflin v. McMinn, 2 Stew. (Ala.) 492 (20 Am. Dec. 58); Kirkwood v. Reedy, 10 Kan. 453; Shenandoah Val. R. R. Co. v. Ashby’s Trustees, 86 Va. 232 (9 S. E. 1003, 19 Am. St. Rep. 898); Estate of Newman, 75 Cal. 213 (16 Pac. 887, 7 Am. St. Rep. 146).
Mr. Freeman, in his work on Executions (p. 358, 3 ed.), criticises the practice of the courts in allowing ex parte amendment of process, but concedes that such amendments are not void. This question was thoroughly considered in Rickards v. Ladd, 6 Sawy. 40 (Fed. Cas. No. 11,804), a case arising- in this state in the United States District Court. The circumstances were not substantially different from the case at bar
“And, first, this is not a jurisdictional matter. Tbe jurisdiction of tbe court depends upon tbe service of the process. Tbe proof of tbe fact, tbe return, is made by tbe officer making tbe service, in obedience to the command of tbe writ under such regulations as tbe law may prescribe. Tbe court cannot say what return shall be made, but when made, it becomes a part of the record of the court. The defendant is not a party to tbe proceeding, and it is made without bis consent or notice to him.
“If afterwards it is discovered that a mistake has been made in tbe matter, tbe return, being now a record of the court, can only be amended by leave of tbe court. But still tbe court does not make tbe amendment. Tbe authority to amend tbe return, as in tbe case of making it, is primarily in tbe officer, and not in tbe court; but after making the return, tbe authority of tbe officer becomes qualified so that it cannot be exercised without tbe consent of tbe court. Strictly speaking, then, tbe proceeding is one between tbe officer and the court. It is ex parte in its very nature, and no one has an absolute right to notice of it. In contemplation of law tbe amended return is made under tbe same sanction and responsibility as tbe mistaken one. In effect, it becomes tbe return in tbe case, and cannot be questioned collaterally by tbe parties to tbe action or those claiming under them as privies.”
The other questions raised are merely variations of these álready considered and need not be separately discussed.
The motion to dismiss is overruled.
Overruled.
Rehearing
Petition for Rehearing.
(178 Pac. 799.)
On petition for rehearing on motion to dismiss appeal. Overruled.
Mr. G. Evert Baker, for the petition.
Messrs. Cochran & Eberhard, opposed.
In a petition for rehearing respondent calls attention to several defects in the proceeding to obtain service of summons by publication, in addition to those particularly pointed out in the brief heretofore presented, and insists that these defects rendered the original proceedings wholly void. The objections are serious and go to the vital merits of the appeal, and should not be decided without full oral argument.
We, therefore, adhere to our original decision and deny the motion to dismiss, with permission to renew at the hearing where all the questions raised can be more fully discussed. Rehearing Denied.
Opinion on the Merits
Argued June 6, reversed June 24, 1919.
On the Merits.
(182 Pac. 136.)
Order vacating default decree for plaintiff reversed.
Reversed.
For appellant there was a brief over the name of Messrs. Cochran S Eberhard, with an oral argument by Mr. Colon B. Eberhard.
7. The material facts in this case are sufficiently stated in Wade v. Wade, ante, p. 642 (176 Pac. 192), which involved the determination of a motion to dismiss, which motion went practically to the whole merits of this appeal.
After that ■ decision learned counsel for the plaintiff suggested, upon petition for rehearing, that there were other defects in the original proceedings, which were so serious as to render the order permitting the amendment of proof of service, absolutely void. Whereupon we granted permission to respondent to renew the motion to dismiss, upon the final hearing: Ante, p. 649 (178 Pac. 799). ■
Since that hearing we have carefully re-examined the record and are satisfied the Circuit Court had jurisdiction to permit the amendment nunc pro tunc,° of the original proof of service, and that the original decree of divorce rendered on June 23, 1917, was a valid decree. This being the case, the court was without power to vacate said decree on May 20, 1918. The order of'May 20, 1918, is therefore reversed.
Reversed.