Gardner v. Lincoln Bank & Trust Co.

• Decision Date: 03 November 1933
• Citation: 251 Ky. 109
• Court: United States State Supreme Court — District of Kentucky
• Parties: Gardner et al. v. Lincoln Bank & Trust Co.

Page 109

251 Ky. 109

Gardner et al. v. Lincoln Bank & Trust Co.

Court of Appeals of Kentucky. Chancery Branch, First Division.

Decided November 3, 1933.

1.

Judgment. — Defendant, after rendition of judgment, may impeach return of service of process as basis for setting aside judgment.

2.

Witnesses. — Where both defendants, husband and wife, resisted judgment on creditor's motion for writ of possession, husband held competent witness for wife on motion to set aside judgment on ground of invalid service of process.

3.

Judgment. — Proceeding to set aside judgment on ground no process was served on defendant held not objectionable as collateral attack.

4.

Process. — Where summons was served by special bailiff, presumption in favor of return does not arise (Civil Code of Practice, sec. 47; Ky. Stats., secs. 4562, 4563, 4574).

5.

Process. — Officer's return of service of process is subject to attack for mistake in proceedings other than direct proceeding against officer (Ky. Stats., sec. 3760).

6.

Evidence. — "Positive evidence" is testimony which intrinsically shows witness had opportunity to observe and did observe, and "negative evidence" is testimony that does not of itself show that.

7.

Judgment. — Evidence held to establish that defendant wife was not duly served with process, rendering foreclosure judgment and sale thereunder void (Ky. Stats., secs. 4562, 4563, 4574).

Appeal from Jefferson Circuit Court

DAYTON MITCHELL and BENJ. F. GARDNER for appellants.

J.H. GOLD for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

In the trial court Nellie T. Gardner moved to set aside a judgment and the sale made thereunder, and her motion was overruled. The Lincoln Bank & Trust Company (hereafter called the bank) sought and was awarded against Mrs. Gardner and her husband, Benj. F. Gardner, a writ of possession of the property sold under that judgment, and both Mr. and Mrs. Gardner have appealed.

On August 31, 1927, C.W. Brickley and his wife executed to the bank a mortgage on this property to secure the payment of six bonds of $1,000 each, all due one year thereafter.

February 29, 1928, Brickley and wife conveyed this property to Gardner and wife by deed of record, Deed Book 1328, p. 216, and the grantees assumed and agreed to pay these bonds.

This deed conveyed this property to Mr. and Mrs. Gardner as tenants in common during their joint lives with remainder in fee to the survivor. November 4, 1929, the bank sued Brickley and the Gardners upon these bonds and the mortgage, alleging that interest was due on these bonds from February 28, 1929, and sought a sale of the property to pay the bonds and $131.29 the bank had paid for insurance on the property. Process issued directed to the sheriff, and upon it this appears:

"I hereby appoint W.A. Halliday a special bailiff to execute the within Writ. Aubrey Cossar, S.J.C., By Albert Tyler, D.S.

"Executed Nov. 5, 1929, on Benjamin F. Gardner, and C.W. Brickley; Nov. 6, 1929, on Nellie T. Gardner by delivering to each of them a copy of the within summons. Aubrey Cossar, S.J.C., by W.A. Halliday, S.B.

"Affiant, W.A. Halliday, states that he is a male white person over the age of 16 years, not interested in this action nor related to any of the parties hereto and that the return hereon is true. W.A. Halliday.

"Subscribed and sworn to before me by W.A. Halliday this 6th day of November, 1929. A.E. Hollenkamp, Notary Public, Jefferson County, Kentucky. My commission expires Jan. 30, 1930"

Benj. F. Gardner's demurrer to the petition was overruled. He filed an answer making an issue as to the money alleged to have been paid for insurance. The court found against him. On March 20, 1930, the court entered a judgment against all three of the defendants for this $6,000 with interest from February 28, 1929, and $131.39 with interest from October 8, 1929, and ordered the property sold in satisfaction thereof.

On March 17, 1930, the bank in open court acknowledge payment on its judgment by Benj. F. Gardner of $1,200. On October 23, 1930, the bank acknowledged a further payment by Benj. F. Gardner of $200 on its judgment. On March 14, 1931, the commissioner reported that on March 9, 1931, he had sold the property to Benj. F. Gardner for $5,570, and the commissioner paid into court $250 which Gardner had deposited when his bid was accepted. On March 21, 1931, Benj. F. Gardner filed exceptions to the report of sale because:

"The defendant, Nellie T. Gardner, was never served with summons and the judgment and sale as to her is invalid."

On March 6, 1931, he filed in support of his exceptions her affidavit, which, omitting the caption and jurat, is:

"Nellie T. Gardner, says she is the wife of Benj. F. Gardner and part owner of the property sued herein. Affiant says that never at any time was a summons served on her by the Sheriff, Special Bailiff or any person. That she knew nothing of said cause prior to advertising the property for sale at which B.F. Gardner became the highest bidder therefor. She says the foregoing statements are true. Nellie T. Gardner."

On April 16, 1931, Benj. F. Gardner withdrew his exceptions and was allowed two weeks to comply with the terms of sale. He failed to comply, and on June 11, 1931, the property was ordered resold.

On August 17, 1931, the commissioner reported he had offered the property for sale and the bank had bid it in for $5,000. On October 3, 1931, sale to the bank was confirmed, and on October 13, 1931, a deed for it was delivered to the bank. On October 24, 1931, the bank entered a motion against Benj. F. Gardner and Nellie T. Gardner for a writ of possession. On October 29, 1931, Nellie T. Gardner moved the court to set aside the judgment, the sale made thereunder, and to cancel the deed made for want of process on her and in support thereof filed her affidavit, which, while more elaborate, is essentially the same as the one copied above, except in this one she alleges the return is a mistake on the part of Halliday.

On November 7, 1931, the evidence was heard before the court, it was taken down by the stenographer, it and the exceptions thereto have been made a part of this record, and will be discussed presently.

On February 23, 1932, the court overruled Mrs. Gardner's motion to set aside the judgment, etc., and ordered a writ of possession to issue against Mr. and Mrs. Gardner. The Gardners excepted, were granted an appeal, they have superseded the judgment, and here they are.

Our first question is: Can Mrs. Gardner impeach this return after judgment has been entered against her? 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. There is good authority upon the proposition that sheriff's return of service of summons is not conclusive between the parties in the same proceeding after judgment is rendered, but that defendant on motion to set the judgment aside can prove the falsity of the return. A thoroughly considered case, which upholds the right of a defendant to vacate by motion a judgment which had been rendered against him without notice of the suit, is found in Du Bois v. Clark, 12 Colo. App. 220, 55 P. 750, 751. In that case the action was against two defendants. The return of the sheriff recited personal service of summons on both. An appearance was made by attorney for both defendants, and an answer filed. The trial resulted in a judgment for the plaintiff, from which an appeal was taken, and the judgment reversed and the cause remanded for a new trial. See Tabor v. Clark, 15 Colo. 434, 25 P. 181. On the second trial judgment was again rendered against both defendants, the record showing the appearance of both defendants by the same attorney as before. Six months afterward one of the defendants moved the court to vacate the judgment, as against him, and to recall the execution which had been issued, on the grounds that no summons was served upon him in the action, and that he had no knowledge or notice of the action, and that he had never appeared or authorized any appearance in his behalf in the suit, and that the return of service of summons upon him and the appearance of attorneys for him in the action were unknown to him until after execution had been issued. The motion was denied by the trial judge, but his ruling was reversed on appeal. In reversing that judgment the court said some things we think quite applicable here, so we shall quote some of them:

"If the officer does not personally know the defendant, 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. * * *

"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.

"The authority of a court to set aside its judgment, when the action is demanded by justice, is not dependent upon statute. The power is inherent, and may, in a proper case,...