Lake Drainage Com'rs v. Spencer

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK, C.J.
• Citation: Lake Drainage Com'rs v. Spencer, 174 N.C. 36, 93 S.E. 435 (N.C. 1917)
• Decision Date: 12 September 1917
• Docket Number: 22.
• Parties: LAKE DRAINAGE COM'RS v. SPENCER ET AL.

93 S.E. 435

174 N.C. 36

LAKE DRAINAGE COM'RS v. SPENCER ET AL.

No. 22.

Supreme Court of North Carolina

September 12, 1917

Appeal from Superior Court, Hyde County; Daniels, Judge.

Action by the Lake Drainage Commissioners against S. H. Spencer and others. From a judgment for defendants, plaintiffs appeal. Reversed.

While a sheriff's return on process is not conclusive, and does not, even between the parties and privies to the action import absolute verity, yet it is prima facie correct, and proof necessary to overturn it must be clear and unequivocal.

Spencer & Spencer, of Swan Quarter, and Ward & Grimes, of Washington N. C., for appellants.

Thos H. Long, of Swan Quarter, and H. C. Carter, Jr., and Small MacLean, Bragaw & Rodman, all of Washington, N. C., for appellees.

CLARK C.J.

The plaintiffs' drainage district was duly established by proceedings regular on their face. It appeared from the return of the sheriff upon the summons in said cause that it had been duly served upon Mrs. S. H. Spencer, the mother of the defendants. The defendants, however, contended that, notwithstanding the return of the sheriff, said summons had not in fact been served upon her.

On the trial of this cause the sheriff testified in corroboration of his return to the writ that he did in fact duly serve the summons on Mrs. Spencer. Her children, who were defendants, were allowed to testify that they never heard their mother say anything to anybody about the summons having been served upon her. This was error in any aspect. In the first place, if the witnesses had testified affirmatively that Mrs. Spencer had said that the summons had not been served upon her, it would have been incompetent as hearsay. It is all the more incompetent in this negative form that they had heard her say nothing about it, which proves nothing, and, if it proved anything, would tend to show that she had been served.

Even if the ancestor of the defendants had been alive, her testimony alone would not have been sufficient to rebut the presumption arising from the return of the sheriff that he had duly served the summons upon her. Burlingham v. Canady, 156 N.C. 179, 72 S.E. 324. Revisal, § 1529, provides that the return of the sheriff that the summons has been executed "shall be deemed sufficient evidence of the service thereof." The presumption is that the officer's return states the truth. Strayhorn v. Blalock, 92 N.C. 292; Isley v. Boon, 113 N.C. 249, 18 S.E. 174; Miller v. Powers, 117 N.C. 218, 23 S.E. 182; Chadbourn v. Johnston, 119 N.

C. 282, 25 S.E. 705. It is prima facie correct; Williamson v. Cocke, 124 N.C. 585, 32 S.E. 963.

Revisal, § 2817, provides that the sheriff is liable for a penalty of $100 for failure to serve process when delivered to him in the prescribed time before the return day, and to a penalty of $500 and an action for damages if he make a false return of process. The recitals in the sheriff's return are prima facie true (Simpson v. Hiatt, 35 N.C. 470), and cannot be collaterally impeached (Edwards v. Tipton, 77 N.C. 222). In Hunter v. Kirk, 11 N.C. 277, it is said that the sheriff is "a sworn officer and his return cannot be contradicted by a single affidavit." This was cited with approval in Mason v. Miles, 63 N.C. 564. To same effect, State v. Vick, 25 N.C. 491. Both these cases were cited as authority in Miller v. Powers, 117 N.C. 220, 23 S.E. 182, and Burlingham v. Canady, 156 N.C. 179, 72 S.E. 324.

At common law the rule was, as it is still in many of our states, that as between parties and privies the return of an officer is conclusive as to service of process, and can be controverted only in an action against the officer for a false return, unless there is contradiction by other matter in the record itself, or unless it is shown that the false return was procured by the plaintiff in the action, or resulted from the mistake of the officer. 32 Cyc. 514, 515.

In Tillman v. Davis, 28 Ga. 497, 73 Am. Dec. 786, Lumpkin, J., said:

"I have investigated carefully in Brooke's and Viner's Abridgments and traced the question to its fountain head, and find it well settled that by the common law no averment will lie against the sheriff's return."

This is held in many of our states, as set out in the notes to 32 Cyc. 514, 515. In other states a more liberal rule permits the...