Hoitt v. Skinner

• Decision Date: 19 October 1896
• Citation: 68 N.W. 788,99 Iowa 360
• Parties: HOITT v. SKINNER ET AL.
• Court: Iowa Supreme Court

99 Iowa 360

68 N.W. 788

HOITT

v.SKINNER ET AL.

Supreme Court of Iowa.

Oct. 19, 1896.

Appeal from district court, Woodbury county; A. Van Wagnen, Judge.

On the 1st day of September, 1894, the plaintiff took a personal judgment by default upon certain promissory notes and a decree of foreclosure upon a certain mortgage against the defendants E. W. Skinner, John Hornick, and the Interstate Investment Company for $18,806.22, and $228 attorney's fee, and $10.80 costs. On the _____ day of October, 1894, the defendants E. W. Skinner and the Interstate Investment Company filed a motion, supported by affidavit, to set aside said default and judgment upon the ground that they were entered “upon a supposed state of facts which did not in fact exist, and upon an insufficient service of notice.” On October 30, 1894, said motion was overruled, and from that ruling the defendants E. W. Skinner and the Interstate Investment Company appealed. Reversed.Lewis & Beardsley, for appellants.

Joy, Call & Joy, for appellee.

GIVEN, J.

The record shows that an original notice in due form, and signed “Joy, Call & Joy, Attorneys for the Plaintiff,” was delivered to the sheriff to be served. The sheriff's return shows that on the 10th day of August, 1894, “I served E. W. Skinner, and on the 10th day of August, 1894, I served the Interstate Investment Company, by E. W. Skinner, vice president of said company, by reading said notice to each one of them personally and then and there delivering to each one of them a true copy of the same,--all done within Woodbury county, Iowa. [Signed] W. C. Davenport, Sheriff of Woodbury Co., Iowa.” The affidavit of E. W. Skinner, filed in support of said motion, states as to the service as follows: “That on the 10th day of August, 1894, one Pecaut, a deputy sheriff of Woodbury county, Iowa, pretended to make service of the original notice in said cause upon me as the defendant E. W. Skinner, and also as vice president of the defendant the Interstate Investment Company; that said officer at said time did not read to me the said pretended original notice, either for myself as defendant, or for the defendant the Interstate Investment Company; that he gave to me, as and for copies of said pretended original notice, two certain papers, one of which is hereto attached and marked as ‘Exhibit A’; that the other paper which he gave to me was in all respects an exact copy of Exhibit A.” He further states that there was no other service of said notice made upon him. W. D. Turner makes affidavit that he was secretary and treasurer of said appellant company, and that no service of said notice was made upon him. The caption in the two papers delivered to Mr. Skinner showed the title of this cause, that it was in the district court of Woodbury county, “at Aug. term, A. D. 1894.” They were true copies of the original notices, except in the conclusion, which is as follows: “And that unless you appear thereto and defend before noon of the second day of the next term of said court, commencing at Sioux City, Iowa, the _____ day of _____, 189-, default will be entered against you, and judgment rendered thereon. Dated this _____ day of _____, 189-. Attorney for Plaintiff.” It will be observed that these copies did not show that the original was signed by plaintiff's attorneys. Appellants do not offer any showing of merits or excuse for default, nor do they plead, or offer to plead, issuably.

2. The sheriff's return is not conclusive, but upon grounds of public policy it must be regarded as strong evidence of the facts to which the law requires the officer to certify. Wyland v. Frost, 75 Iowa, 209, 39 N. W. 241. Appellee contends that, giving to the return the weight to which it is entitled, we should not find that the service was as stated by Mr. Skinner in his affidavit. We think differently. Mr. Skinner's statements are direct, positive, and as to a recent transaction. We cannot doubt but that the service was made by a deputy, and yet the return is signed by the sheriff himself, who in all probability had no personal knowledge as to the manner of the service. We are satisfied that the original notice was not read to Mr. Skinner, and that the only copies delivered to him were those set out with the motion. Appellants' contention is that, owing to those omissions in the copies, it is as though no notice whatever had been served, that the court was therefore without jurisdiction, and that the judgment is void, and may be set aside without pleading issuably, showing merits, and excusing the default as provided in section 4078, McClain's Code. Appellee contends that it is at most a defective service, that the court had jurisdiction of the persons and subject-matter, that by the service defendantswere sufficiently advised as to the term at which they were required to appear, and that the default may not be set aside except as provided in said section 4078. Section 3804, McClain's Code, provides that the original notice shall name the term at which the defendant is required to...