Hays v. Alway

• Citation: 166 N.W. 139,39 S.D. 586
• Decision Date: 31 December 1917
• Docket Number: 4251.
• Parties: HAYS v. ALWAY et al.
• Court: Supreme Court of South Dakota

166 N.W. 139

39 S.D. 586

HAYS v. ALWAY et al.

No. 4251.

Supreme Court of South Dakota

December 31, 1917

Appeal from Circuit Court, Brown County; Thomas L. Bouck, Judge.

Action by Lewis J. Hays, against R. D. Alway and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Geo. H Fletcher, of Aberdeen, and W. H. Morgan, of Hecla, for appellants.

Campbell & Walton, of Aberdeen, for respondent.

POLLEY J.

On and prior to the 30th day of November, 1910, the respondent in this action was the owner in fee of 80 acres of land in Brown county. On said date a certain judgment was entered in a justice court in said county in an action wherein respondent was the defendant. Thereafter said judgment was docketed in the circuit court of said county, execution issued thereon and the said 80 acres of land levied upon and sold thereunder. This sale took place on the 19th day of June 1911. The appellant R. D. Alway was the plaintiff in said action and the purchaser at the said execution sale. The other appellants acquired interests in said land as grantees of the said Alway. The amount claimed by defendant Alway against respondent in said action was $65. The amount of the judgment, including interest and costs, was $81. The value of the property sold to satisfy said judgment at the time of the sale was $3,200. Respondent, claiming that the summons in said action was never served upon him, and that the justice court in which said judgment was rendered never acquired jurisdiction of him, brought this action for the purpose of having the said judgment declared null and void for want of jurisdiction and to have the said execution sale and all conveyances made subsequent thereto canceled and set aside. Findings of fact and judgment were for plaintiff, and defendants appeal.

The regularity of the proceedings subsequent to the entry of the said judgment in the justice court are not questioned, so that the first question to be determined on this appeal is whether the summons was in fact ever served upon the defendant in that action.

The only service of the said summons that was ever attempted to be made on the defendant was the leaving of a copy thereof with the defendant's mother at her residence in Liberty township, about four miles from the village of Hecla, in said Brown county. Respondent claims, and the court found as a matter of fact, that the respondent did not live with his mother at the time of such attempted service; that he was not at that time a member of her family, nor she of his; and that the said justice court never acquired jurisdiction of him. And the trial court further found that the sheriff never served upon the said defendant any notice of his attempted levy under the said execution, and never attempted to take possession of the real estate so attempted to be levied upon by him, and that the defendant (respondent herein) never had any knowledge of the said action in the justice court, or of the said attempted execution sale, or knew that any of the defendants in this action were claiming said real estate or any interest therein until in the spring or summer of 1914 and shortly prior to the commencement of this action.

It is contended by appellants that the evidence that the summons was not served is insufficient to overcome the return of the sheriff showing the summons to have been properly served. Appellants recognize the rule that this court will not disturb a finding of fact made by the trial court unless such finding is contrary to the clear preponderance of the evidence, but contend that such rule does not apply to cases where it is attempted to impeach a sheriff's return of service; that as a matter of public policy such return should be upheld by the court unless it is opposed by clear and satisfactory evidence to the contrary-citing Burton v. Cooley, 22 S.D. 515, 118 N.W. 1028; Matchett v. Liebig, 20 S.D. 169, 105 N.W. 170; Ketchum v. White, 72 Iowa, 193, 33 N.W. 627; Vaule v. Miller, 69 Minn. 440, 72 N.W. 452; Osman v. Wisted, 78 Minn, 295, 80 N.W. 1127. But, conceding the rule to be as claimed by appellants, it would not apply in this case. The sheriff's return does not show that he served the summons upon the defendant personally, but that he served the same upon him by leaving a copy of it at defendant's dwelling house with his mother, and that she was a member of defendant's family. That he left the summons with defendant's mother at the time and at the place he says he did is not disputed. There is no attempt to impeach the sheriff's return so far as it relates to any act on his part. It is only claimed that the sheriff was mistaken in his conclusion that defendant's mother was a member of his family at the time he claims to have made such service, and that the place where he left the summons was defendant's residence.

A distinction is recognized between those matters in a sheriff's return that are stated on his personal knowledge and such matters as are his conclusions only. Where a sheriff returns that he served a summons by handling to and leaving with the defendant a copy of such summons at a certain time and place, while not absolutely conclusive there is a strong presumption that such return is true, and it can be impeached only by clear and conclusive proof. But where a sheriff in his return recites matters that are merely his conclusions from what some one else tells him, while prima facie evidence of the matters so recited, they are subject to impeachment according to the rules applied to evidence generally. This identical question was under consideration in Great Western Mining Co. v. Mining Co., 12 Colo. 46, 20 P. 771, 13 Am. St. Rep. 204. In that case the sheriff's return recited that he served the summons on a corporation by leaving a copy of the summons with the resident agent of such corporation, when in fact the party with whom such copy was left was only a foreman in the mine. In discussing the question, the Supreme Court of Colorado, in 12 Colo. at page 62, 20 Pac. at page 779, 13 Am. St. Rep. at page 217, in the...