Goddard v. Harbour
| Decision Date | 09 May 1896 |
| Docket Number | 8437 |
| Citation | 56 Kan. 744,44 P. 1055 |
| Parties | J. H. GODDARD v. JOHN J. HARBOUR et al |
| Court | Kansas Supreme Court |
Decided January, 1896.
Error from Chase District Court.
THIS action was brought by John J. Harbour and Frances J. Harbour against E. A. Kinne, sheriff of Chase county, J. H. Goddard Erastus Replogle, and Herbert E. Ball, to enjoin the enforcement of a judgment rendered in favor of Goddard against the plaintiffs for the sum of $ 2,209.70, and foreclosing a mortgage on their homestead, on the ground that the judgment was rendered without jurisdiction. It appeared on the trial that a summons in due form was issued and delivered to the sheriff of Chase county, where the parties resided, and that his return was duly indorsed thereon in the following words:
"Received this writ this 10th day of December, A. D. 1888, at 10 o'clock A. M. December 12, A. D. 1888, served the same by delivering a copy thereof with the indorsements thereon, duly certified, to the within named John J. Harbour, Frances J Harbour, and Erastus Replogle, personally.--E. A. KINNE Sheriff."
It was shown without dispute that personal service was duly made on John J. Harbour by the under-sheriff, but as to the service on Frances J. Harbour the evidence was somewhat conflicting. All the witnesses agree that a copy of the summons was left at her place of residence. On the part of the plaintiff, the evidence tended to show that it was inclosed in a sealed envelope, addressed to J. J. Harbour; that it was not opened by Mrs. Harbour, and that she never saw the copy of the summons, and had no knowledge of the commencement of the suit until after judgment had been rendered. A. H. Brown, who was the mail-carrier to Wonsevu, testified that he was a deputy sheriff, and that he served the summons on Mrs. Harbour by delivering it to her personally. On this testimony, the trial court perpetually enjoined the enforcement of the judgment. The opinion herein was filed May 9, 1896.
Judgment reversed.
Wheeler & Switzer, for plaintiff in error.
Madden Bros., for defendants in error.
OPINION
A motion is made to dismiss this proceeding because the sheriff and Herbert E. Ball, who were parties in the court below, are not made parties here. While they were proper parties in the district court, the sheriff had no interest in the litigation, but was made a defendant merely because he held an order of sale issued on the judgment, which he was about to execute, and Ball is shown by the pleadings to have had no interest in the litigation, being merely the trustee named in the original mortgage. They are not necessary parties in this court.
The record presents squarely the question whether a sheriff's return as to matters concerning the truth or falsity of which he must know is conclusive on the parties to the suit. The sheriff in this case returned that he had served the summons on the defendants personally. He knew whether he had or had not done so. It is true that in this case the evidence of the sheriff, under-sheriff and Brown all shows that no service was made by the sheriff himself, but that a copy was delivered to John J. Harbour by the under-sheriff, and whatever service was made on Frances J. Harbour was by Brown, concerning whose appointment as deputy prior to that time the evidence is conflicting. The sheriff has the right, however, to act through deputies, and is responsible for their doings to the same extent as for his own. While it would be better, perhaps, in all such cases to have the return show that the sheriff executed the process by the deputy, thus placing on record the exact truth, a return signed by the sheriff in his own name alone is undoubtedly sufficient where the service is actually made by a deputy. But the real question in the case is whether there may be any contradiction of the return outside of the record in the case itself. In England it has been the established law from a very early day that the return is conclusive as between the parties, and that the remedy of a party injured by a false return is by an action against the sheriff on his official bond, in which case alone the truth or falsity of the return may be inquired into. (19 Viner's Abridgment, 210; 6 Comyn's Digest, 242.) In this country there is much diversity of judicial opinion on the subject, but the decided weight of authority seems to support the position that, as to matters falling within the personal knowledge of the sheriff, his return is conclusive as between the parties to the record, unless the falsity of the return is disclosed by some other portion of the record of the case. These cases hold that the return of the officer is conclusive on the question of jurisdiction. It is not necessary now to inquire how far the court may go in setting aside a service when challenged in the suit in which it is made before judgment. In this case the only ground on which the judgment of the trial court can be maintained is that the court was without jurisdiction to render the judgment in the prior action. The following cases seem to support the doctrine that a want of jurisdiction may be shown at any time, and that the return of the sheriff is only prima facie evidence of the facts stated: Dunklin v. Wilson, 64 Ala. 162; Watson v. Watson, 6 Conn. 334; Quarles v. Hiern, 70 Miss. 891, 14 So. 23; Pollard v. Wegener, 13 Wis. 569. The courts of Georgia and New York, while recognizing the existence of the general rule, hold that under the practice prevailing in those states the officer's return is not conclusive. (Dozier v. Lamb, 59 Ga. 461; Ferguson v. Crawford, 70 N.Y. 253.) It was said in the opinion in the last-mentioned case:
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Smoot v. Judd
...that the bill should be taken for confessed upon the return of the sheriff. The petition was properly dismissed." Goddard v. Harbour, 56 Kan. 744, 44 P. 1055, was bill in equity to enjoin the enforcement of a judgment at law on the ground that the court was without jurisdiction to render it......
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Boise Valley Traction Co. v. Boise City
...himself, is sufficient though made out by a deputy under the direction of and upon information received from the sheriff. (Goddard v. Harbour, 56 Kan. 744, 44 P. 1055.) sheriff's return is prima facie evidence of service, entitled to great weight, and not overcome by affidavits showing only......
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Ray v. Harrison
...that return must be taken as conclusive evidence of the facts stated, and a number of cases support this rule. Goddard v. Harbour, 56 Kan. 744, 44 P. 1055, 54 Am. St. Rep. 608, and other cases therein cited. We do not, however, perceive the justice of this rule. It is fundamental that a jud......
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Kueffner v. Gottfried, 23115.
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