Foshier v. Narver

• Decision Date: 31 July 1893
• Citation: 34 P. 21,24 Or. 441
• Parties: FOSHIER v. NARVER.
• Court: Oregon Supreme Court

34 P. 21

24 Or. 441

FOSHIER v. NARVER.

Supreme Court of Oregon

July 31, 1893

Appeal from circuit court, Yamhill county; George H. Burnett, Judge.

Action by W.E. Foshier against John Narver on a judgment. Judgment for plaintiff. Defendant appeals. Affirmed.

W.M. Ramsey, for appellant.

J.E Magers, for respondent.

LORD C.J.

This is an action upon a judgment of the district court obtained in the state of Iowa. The plaintiff alleges, in substance, that on the 2d day of September, 1891, in an action wherein William E. Foshier, the plaintiff herein, was plaintiff, and the defendant, John Narver, was defendant, a judgment was rendered by said court in favor of this plaintiff, and against the defendant, for $675 damages, and for $6 costs and disbursements, etc. The answer denies the material allegations of the complaint, and avers that, during all the time for more than 10 years last past, the defendant was, and now is, a resident of the state of Oregon; that he was not at any time or place or in any manner served with notice summons, or process in said action prior to the rendering of such judgment. The reply denies the new matter contained in the answer. Upon issue being thus joined, a trial was had resulting in a verdict for plaintiff, and, a judgment being rendered thereon, the defendant appeals. The errors assigned are the giving of certain instructions by the court, and the refusal to give certain instructions requested by the defendant. The judgment rendered in the Iowa court is founded on a note made and signed by W.F. Narver and P.J. Narver at Ottumwa, Iowa, on November 20, 1874, due two years after date, and payable to J.W. Kitch. The contention for the defendant is: (1) That the service of process upon him in that case was on the wrong party; and (2) that the jury had the right to consider the fact that the note sued on was signed by P.J. Narver, and not by him, in corroboration of his testimony to that effect.

The doctrine is now well settled that the constitutional provision that full faith and credit shall be given to the judicial proceedings of other states does not preclude inquiry into the jurisdiction of the court, in which the judgment was rendered, over the subject-matter, or the parties affected by it, nor into the facts necessary to give such jurisdiction. Thompson v. Whitman, 18 Wall 457; Freem.Judgm. §§ 562, 563; Black, Judgm. § 901. A defendant has a right to show by proof that he had not in fact been served with process, and, as a consequence, that the court never acquired jurisdiction over his person. Knowles v. Coke Co., 19 Wall. 58. As the defendant must bring his proof within this rule, it is essential, in determining whether his contention is tenable, to understand the facts upon which it is founded. The transcript of the proceedings in the Iowa court shows that the defendant in that action was J. or John Narver, and the same name as the defendant in the present case. The notice or summons was addressed to J. Narver, defendant, and the return upon it is as follows:

"This notice came into my hand Nov. 7th, 1891, and I hereby certify that I personally served the same on the within-named J. Narver, by reading the same to him, and offered to deliver him a copy, but he refused to take it, and waived a copy of the same, in Troy township, Monroe county, Iowa, on the 7th day of November, 1891. [ Signed] Daniel McCarty.

"I, Daniel McCarty, being first duly sworn, depose and say that the above and foregoing return of the within notice is correct; that I served the same as above set forth. [ Signed] Daniel McCarty.

"Subscribed and sworn to before me, this 9th day of November, 1891. Signed this 9th day of November, 1891. [ Seal.] C.B. Foshier, Notary Public."

The defendant admits that he was in that county and state at the time and place the return shows that he was personally served, and that a person came to him then and there, and asked if his name was Narver, which he answered in the affirmative; that this person read a notice to him directed to P.J. Narver, in an action in which W.E. Foshier was plaintiff and P.J. Narver was defendant, when he told him his name was not P.J. Narver, but John Narver, at which such person wrote or seemed to write something on a paper. Upon this state of facts the defendant contends that, if the notice served upon him was directed to P.J. Narver in a case against P.J. Narver, the service was upon the wrong party, and that he had a legal right to disregard it, as the service of such process could give the court no jurisdiction of his person. This contention is based on the idea that the defendant's testimony contradicts the proof of service, because it shows that the name in the notice is not the name of the party served, and hence the service is on the wrong party, which he may disregard. But it by no means follows that the wrong party was served, or that there was no legal service, because the summons was addressed in a name differing from the name of the defendant served; as P.J. Narver for John Narver. For all that, the service may be on the...