Crosby v. Farmer

• Court: Minnesota Supreme Court
• Writing for the Court: Mitchell, J.
• Citation: Crosby v. Farmer, 39 Minn. 305, 40 N. W. 71 (Minn. 1888)
• Decision Date: 02 November 1888
• Parties: Oliver Crosby v. S. W. Farmer

40 N.W. 71

39 Minn. 305

Oliver Crosby v. S. W. Farmer

Supreme Court of Minnesota

November 2, 1888

Appeal by plaintiff from an order of the municipal court of St Paul, setting aside a judgment by default.

Order affirmed.

S. P Crosby, for appellant.

A. C Hickman, for respondent.

OPINION

Mitchell, J.

Judgment by default was rendered against defendant in the municipal court of St. Paul, upon the return of a police officer that he had served the summons upon defendant in the city of St. Paul, Ramsey county, by leaving a copy at his last usual abode, with a person of suitable age and discretion then resident therein. Subsequently the judgment was vacated, on motion of defendant made on affidavits showing that he was not and never had been a resident of Ramsey county, but at the time of the alleged service was and ever since has been a resident of Steele county. The plaintiff presented no counter-affidavits, but relied on the conclusiveness of the officer's return, -- contending that it could not be impeached; that, if false, defendant's only remedy was by action against the officer.

This question has never been squarely decided by this court, -- at least as to a return on original process. In Castner v. Symonds, 1 Minn. 310, (427,) in which the question arose as to the conclusiveness of a sheriff's return on an execution, the court, without filing any opinion, affirmed the decree of the district judge, who had held that if the rights of third parties, who had purchased in good faith in reliance on the judicial records, were involved, the return should be held conclusive, but that in other cases it could be impeached. In Tullis v. Brawley, 3 Minn. 191, (277,) the question was the sufficiency on its face of a return on an execution to show a levy and sale. No attempt was made to impeach or contradict the return, and hence all that is said in regard to its conclusiveness is mere obiter. In Frasier v. Williams, 15 Minn. 219, (288,) the motion was, not to set aside the return on the summons, but to open an alleged default, and allow defendant to answer. One of the issues on the motion was whether the defendant was in fact in default when he tendered his answer, and this involved the question as to whether the sheriff's return correctly stated the date of service; and on this the court below received affidavits and counter-affidavits, and denied the motion. Counsel for respondents seem neither to have argued nor raised the question of the conclusiveness of the return; their contention being merely that their counter-affidavits showed that the return was correct, and, the defendant being in default, there was no abuse of discretion in refusing to allow him to defend. This court, after stating the fact that counter-affidavits were presented in support of the correctness of the return, says that there was nothing in the case which would justify them in going behind the return of the sheriff as to the time of service. This was decisive of the case upon the very and only ground made by the respondent. But, after so deciding, the court proceeded, unnecessarily, to cite approvingly the dictum in Tullis v. Brawley, supra, to the effect that the return was conclusive. Assuming that this was a decision, and not mere obiter, it is, as applied to the case then before the court, (an application to set aside an alleged default, and for leave to answer,) virtually overruled in Jensen v. Crevier, 33 Minn. 372, (23 N.W. 541.) In Hutchins v. County of Carver, 16 Minn. 1, (13,) the court below, on motion of the execution creditor, who had bid in the judgment debtor's property, set aside the sheriff's return and the sale on the execution, and granted an alias execution, on the ground that there had been no valid sale, but of which the judgment debtor made no complaint. This court held the return sufficient on its face, and, on the authority of Frasier v. Williams, supra, that it was conclusive between the parties, and therefore the order of the court below was unnecessary, and, being prejudicial to the judgment debtor, was for that reason erroneous. In Jensen v. Crevier, supra, the correctness of the rule stated in Frasier v. Williams, as applied to a direct proceeding to vacate the proceedings, was doubted, but not decided.

These are, so far as we know, the only cases in which the question has ever been in any way considered by this court. The rule of the English common law is that, as between the parties to the process or their privies, a sheriff's return is conclusive, and that the court will not try the truth of it on motion to set aside the proceedings, or allow any averment against it to be taken in pleading; that, if false, the only remedy is against the sheriff by action. Com. Dig. tit. "Retorn" F 2 and G. The reason usually given for the rule is that it is necessary to secure the rights of parties, and give validity and effect to the acts of ministerial officers. In England, process could only be served by the sheriff, who was the only ministerial officer known to the courts for that purpose. Moreover, under the common-law practice which obtained there, it was almost impossible for judgment to be rendered against a party without actual personal notice to him. Under such a system, the rule might be convenient, and without much danger of working injustice.

But under the practice which obtains in this and other states, most...