Jensen v. Crevier

• Decision Date: 18 May 1885
• Citation: 33 Minn. 372
• Parties: JAMES JENSEN and others <I>vs.</I> LOUIS P. CREVIER and others.
• Court: Minnesota Supreme Court

Page 372

33 Minn. 372

JAMES JENSEN and others vs. LOUIS P. CREVIER and others.

Supreme Court of Minnesota.

May 18, 1885.

Appeals by defendants Louis P. Crevier and C. C. Bennett from a judgment of the district court for Hennepin county, entered upon default, and from an order by Lochren, J., refusing to set aside the service of the summons. The sheriff's return of service shows that the summons was served personally on defendant Bennett, and was served upon defendant Crevier by leaving a copy thereof "at the house of his usual place of abode with a person of suitable age and discretion then residing therein."

Merrick & Merrick, for appellants.

J. W. Gilger, for respondents.

DICKINSON, J.¹

The summons in this action having been delivered to the sheriff for service, that officer made return showing service upon the defendants Crevier and Bennett. More than 20 days thereafter the defendants mentioned, who had not made any appearance in the action, applied to the court to be permitted to defend. The application was supported by affidavits alleging that the summons had not been served. The motion was denied, and the defendants appealed. An appeal was also taken from the judgment, to review alleged errors in it.

If we were to follow the decision in Frasier v. Williams, 15 Minn 219, (288,) to the effect that the return of the sheriff as to the service of the summons concludes the defendant, that would be decisive of this case. Whether the general rule there expressed, as to the conclusive effect of the officer's return, should be applied in a proceeding where the verity of the return is directly assailed, as it is in this case, may be doubted; and especially may its applicability be doubted as to an application before judgment to set aside an alleged default, or for leave to defend. The authorities do not agree. The question has not been argued in this case, and it is not necessary for us to pass upon it. The order appealed from was made upon a consideration of the affidavits presented for the purpose of showing the non-service of the summons, and, reviewing the case upon the same evidence, we find that the decision of the court below should be sustained.

Upon grounds of public policy, the return of the officer, even though not regarded as conclusive, should be deemed strong evidence of the facts as to which the law requires him to certify, and should be ordinarily upheld, unless opposed by clear and satisfactory proof. Randall v. Collins, 58 Tex....