Harris v. Sargeant

• Decision Date: 02 April 1900
• Citation: 37 Or. 41,60 P. 608
• Parties: HARRIS et al. v. SARGEANT.
• Court: Oregon Supreme Court

60 P. 608

37 Or. 41

HARRIS et al. v. SARGEANT.

Supreme Court of Oregon

April 2, 1900

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

Action by Sanford S. Harris and others against William Sargeant. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

This is an action to recover real property. Both parties allege ownership in fee, and that they are entitled to possession. On November 15, 1884, William M. Harris was the owner thereof, and he and his wife on that day conveyed the same by quitclaim deed to their children, the plaintiffs herein. Subsequently one G.N. Townsend, a judgment creditor of the said William M. Harris, began a suit against him, Frances Harris, his wife, and the plaintiffs herein, to set aside said deed, and to subject the property to the satisfaction of his judgment. The summons was issued, and placed in the hands of the sheriff of Benton county for service, who made the following return: "I hereby certify that I received the within summons on the 9th day of April, A.D.1889, and served the same on the 25th day of April, A.D.1889, in Benton county, Oregon, on the defendants S.S. Harris, L.E. Harris and L.M. Harris, by delivering to each of said defendants a true and correct copy of said summons, prepared and certified to by me as sheriff, the above-named defendants being minors also by delivering to their guardian, Mrs. Frances Kemp, for each of them, a true and correct copy of said summons prepared and certified to by me as sheriff; also by delivering to the defendant S.S. Harris and his guardian Mrs. Frances Kemp, each a copy of the complaint, prepared and certified to by C.G. Coad, county clerk of Polk county, Oregon." An order was made in said cause, which, after reciting that, "it appearing to the court that said defendants have been duly served as by law required, to wit, by personal service upon defendants S.S. Harris, L.M. Harris, and L.F. Harris, and Frances Harris-Kemp, within the county of Benton, and state of Oregon, more than twenty days prior thereto, as shown by the return of the sheriff of said county and state," directed that default be entered against said defendants, and provided for the appointment of a guardian ad litem for the minors. Thereafter a decree was rendered in accordance with the prayer of the complaint, and the premises in controversy were sold to satisfy said judgment, the defendant herein becoming the purchaser, who subsequently obtained a sheriff's deed therefor. Judgment of the court below was for the plaintiffs, and defendant appeals.

W.H. Holmes, for appellant.

E.B. Seabrook, for respondents.

WOLVERTON, C.J. (after stating the facts).

The question presented is whether the defendant acquired the legal title to the premises in controversy by and through the sheriff's deed, and its proper solution depends upon whether these plaintiffs were legally served with summons in said suit, which must be determined entirely from the record. The plaintiffs herein, who were defendants in the suit of Townsend against Harris et al., were all minors under the age of 14 years at the time of the service of summons upon them in that cause. The statute requires the summons to be served by delivering a copy thereof, together with a copy of the complaint, prepared and certified to by the plaintiff, his agent or attorney, to such minor personally, and also to...