Cully v. Shirk

• Decision Date: 31 March 1892
• Docket Number: 15,666
• Citation: Cully v. Shirk, 131 Ind. 76, 30 N. E. 882 (Ind. 1892)
• Parties: Cully v. Shirk, Executor, et al
• Court: Indiana Supreme Court

30 N.E. 882

131 Ind. 76

Cully v. Shirk, Executor, et al

No. 15,666

Supreme Court of Indiana

March 31, 1892

From the Adams Circuit Court.

Judgment affirmed.

J. T France and J. T. Merryman, for appellant.

P. B Manley and E. E. Friedline, for appellees.

OPINION

Miller, J.

This action was brought by the appellant against the appellees to set aside, vacate and declare null and void a judgment and decree of the Adams Circuit Court, rendered against her, in an action to foreclose a mortgage, and to cancel a sheriff's deed, executed in virtue of the judgment and decree.

The judgment is assailed upon the ground that the court was without jurisdiction of the person of the defendant. The complaint alleges that "she never had, at any time, any notice of any kind whatever of the filing of said complaint or the pendency of said action; that the return of said sheriff on said summons, wherein he states that he left a true copy of said summons at the last and usual place of residence of this plaintiff, is wholly false; that no copy of summons or process of any kind in relation to said cause was ever left at the residence of this plaintiff or served on her in any manner whatever; that she never appeared to said cause, in said court, voluntarily or otherwise, and never in any manner submitted herself to its jurisdiction in said action."

This was not an application, under section 396 of the code, to be relieved from a judgment taken against her, through her mistake, inadvertence, surprise or excusable neglect; but was simply a suit to have the judgment set aside, upon the ground that the return of the sheriff, showing that a summons had been served upon her, was untrue; that she never had been served with process, and that, therefore, the court was without jurisdiction of her person when the judgment was rendered.

There is no claim that the defendants in the action of foreclosure had a meritorious defence, or that the proceedings were not proper and regular upon their face.

The appellees answered this complaint by a general denial. The cause was tried by the court, and, upon request, a special finding of the facts and conclusions of law were returned. The conclusion at which we have arrived, upon the effect to be given to the return of the sheriff, in this class of actions, renders it unnecessary to set out at length the finding of facts and conclusions of law.

The court found that the summons issued in the foreclosure suit was returned by the sheriff with this endorsement:

"Came to hand this 7th day of April, 1888. Served as commanded by leaving a true copy of this writ at the last and usual place of residence of Elizabeth Cully, this 11th day of April, 1888.

Perry H. Lawton.

"By J. S. McLeod, Deputy."

This return was regular upon its face, and was such as to fully authorize the court to assume jurisdiction of the person of the defendant. The proceedings of the court, subsequent to that time, appear to be regular. There is no pretence that there was any fraudulent conduct on the part of either the plaintiff or the officer in the service or return of the summons, or that the defendant was not a resident of the county.

Such being the case, we are of the opinion that the return by the sheriff of the service of the process was binding and conclusive upon the parties to the suit, and that neither of them can, as against the other, be permitted to dispute its verity.

In Nietert v. Trentman, 104 Ind. 390, 4 N.E 306, it was held by a divided court, that in a proceeding under section 396, R. S. 1881, to set aside a default and be relieved from a judgment taken against a defendant who had a...