Du Bois v. Clark

• Decision Date: 14 November 1898
• Citation: 12 Colo.App. 220,55 P. 750
• Parties: DU BOIS v. CLARK. [1]
• Court: Colorado Court of Appeals

55 P. 750

12 Colo.App. 220

DU BOIS v. CLARK. ^[1]

Court of Appeals of Colorado

November 14, 1898

Error to district court, Arapahoe county.

Action by Rufus Clark against J.J.B. Du Bois. There was a judgment for plaintiff, and from an order overruling a motion to vacate the judgment defendant brings error. Reversed.

Stuart D. Walling, for plaintiff in error.

Enos Miles and Westbrook S. Decker, for defendant in error.

THOMSON P.J.

On the 16th day of April, 1886, H.A.W. Tabor commenced his action in the district court of Arapahoe county for equitable relief against Rufus Clark and others, in which a writ of injunction was issued, requiring them to refrain from the doing of certain acts. To procure the issuance of the writ, Tabor executed an undertaking, with J.J.B. Du Bois as surety conditioned for the payment to the defendants of all such costs and damages as should be awarded against the complainant, in case the injunction should be modified or dissolved in whole or in part. In that suit judgment went against Tabor on the merits, and the injunction was dissolved. On the 1st day of December, 1886, Clark commenced his action in the same court against Tabor and Du Bois upon their undertaking. Summons was issued in the suit, upon which the following return appears: "State of Colorado, Arapahoe County--ss.: I do hereby certify that I have duly executed the within summons on this 3d day of December, A.D.1886, by personally delivering a copy of this writ, and also a copy of the complaint in this action, to each of the defendants, H.A.W. Tabor and J.J.B. Du Bois, at Denver, county and state aforesaid. Frederick Cramer Sheriff, by J.M. Chivington, Undersheriff." Within the legal period a demurrer was interposed to the complaint which was signed, "Horace A.W. Tabor, J.J.B. Du Bois, by A.B. Seaman,. Their Attorney." Afterwards an answer was filed, which was subscribed in the same manner. The plaintiff replied. The trial resulted in a judgment for the plaintiff from which an appeal was taken to the supreme court, where it was reversed, and the cause remanded for a new trial. Tabor v. Clark, 15 Colo. 434, 25 P. 181. On the 13th day of December, 1895, the cause was retried in the district court, where judgment was again rendered against the defendants. The record recites the appearance at the trial of the plaintiff, by O'Donnell, Decker & Smith, his attorneys, and of the defendants, by J.P. Brockway, their attorney. On the 6th day of August, 1896, Du Bois moved the court to vacate the judgment, as against him, and to recall the execution which had been issued, and stay further proceedings upon the judgment, on the grounds that no summons or other process was served upon him in the action; that he had no knowledge or notice of the pendency of the action, or opportunity to defend himself against it; and that he never appeared, or authorized any attorney or other person to appear in his behalf, in the suit. The motion was supported by his own affidavit, and the affidavits of Mr. Tabor and the several attorneys who had purported to appear for him. He stated in his affidavit that the return of service of summons upon him, and the appearance of attorneys for him, in the action, were wholly unknown to him until the latter part of July, 1896, after an execution had been issued against him upon the judgment. The motion was denied, and the case comes here by writ of error.

The first question with which we are confronted is whether, if the return of the sheriff was false, and was not the result of any misconduct of the plaintiff, its falsity may be shown by the party injured, in a proceeding to vacate the judgment. Undoubtedly, under the English common law, the rule which prevailed was that, as between parties and privies the return of the officer was conclusive, and that it could not be questioned, except in an action against him for a false return. The English rule, with such modifications as difference in modes of procedure may have suggested, has been followed by many of the courts in this country. And so, taking into consideration the several modes in which valid service may be had, it has been held that the recital in the return of matters presumptively within the personal knowledge of the officer is conclusive, as between the parties to the suit, unless the falsity of the return is disclosed by some other portion of the record, while in a proper proceeding the recital of matters not presumptively within the officer's personal knowledge may be shown to be untrue. See Hunter v. Stoneburner, 92 Ill. 75; Goddard v. Harbour, 56 Kan. 744, 44 P. 1055; Carr v. Bank, 16 Wis. 52; Crosby v. Farmer, 39 Minn. 305, 40 N.W. 71. This distinction does not seem to us to be based on any sound principle. The effect of a false return upon the proceeding, and upon the parties to it, is precisely the same in one case as in the other. The officer certifies that he made personal service of the writ upon the defendant, or he certifies that he left a copy of the summons at the usual place of abode of the defendant, with a member of his family over a specified age. Whether he made personal service or not is said to be within his own knowledge; but whether the place where the writ was left was in fact the usual place of abode of the party, or whether the person with whom it was left was a member of the defendant's family, was something to be ascertained by inquiry, and, therefore, is said not to be necessarily within his knowledge. But either mode of service is good, and, if the defendant fails to appear, authorizes default and judgment against him. Why a defendant who is ignorant of the proceedings of the sheriff should be compelled to submit to the hardship of being concluded by the judgment in one case, and not in the other, or why a plaintiff, who is equally ignorant of the proceedings of the sheriff, should be compelled to submit to the hardship of losing the benefit of his judgment in one case, and not in the other, is, we confess, not obvious to us. Neither are we quite able to see why there should be a conclusive presumption in one case, and not in the other. It is true that, if the officer does not personally know the place of abode of the defendant, he must inquire, and must rely upon the information received, and he must also ascertain in the best way he can, whether he leaves the copy of the writ with the right person. Matters respecting which he must be guided by such outside information as he is able to procure cannot be said to be within his personal knowledge. But, on the other hand, he may not be personally acquainted with the defendant; the latter may be a man whom he has never seen, and of whom he has never heard; and in such case he must make inquiry, and must depend upon the result of the inquiry. He may be directed to the wrong man, or he may misunderstand the direction, and make service upon the wrong man. In finding the man, he is acting upon information received from others. As it is entirely possible that the identity of the party may not be within the officer's knowledge, why should it be conclusively presumed that it is? As it is entirely possible that he may, by misdirection or mistake, serve the process on the wrong man, why should it be conclusively presumed that he served it on the right one? Instances of mistakes by officers in the identity of persons sought are to be found in the books. The decisions recognize the liability of the officer to mistake in finding the proper place of service, or the proper person at the proper place, with whom the writ may be left; but he is also liable to mistake in finding the real party he is seeking, and hence we are unable to understand the distinction which some of the courts undertake to draw between the effect of service in one way and the effect of service in the other.

But, aside from all this, section 25 of the bill of rights provides that no person shall be deprived of life, liberty, or property without due process of law. The legislature has prescribed the process necessary where life or liberty is involved; and it has also prescribed the process necessary to the rendition of judgments in civil actions, by means of which parties may be deprived of their property. The process prescribed is actual process, to be actually served in some one of the methods specified. A person cannot be deprived of his life or liberty on a presumption, unless the presumption and the fact accord; and as, in respect to process, the constitution places life, liberty, and property upon an equality, a party cannot be deprived of his property without service of process in the manner provided by law. A presumption of service may or may not be true; and, if it is false, a judgment entered upon it, if it is enforced by execution, results in depriving the person who is the subject of the presumption of his property without due process of law. We concede the force of precedents, and the respect which is due to them; but, where gross injustice may follow adherence to a precedent, we do not conceive that it is binding upon courts, at least unless it is more generally concurred in than this, that the return by the sheriff of personal service of summons is conclusive upon the parties. And we do not conceive that any decision, except by the supreme court of our own state, would authorize us to place a construction upon the language of our constitution different from that which we believe it will bear.

But the courts are not agreed that the return, even if it recites personal service, is impervious to attack in a direct proceeding by the party upon whom the service purports to have been made, provided no rights of third persons have intervened. In Owens v. Ranstead, 22 Ill. 161, the complainant brought his proceeding in...