Minn. Thresher Mfg. Co. v. L'Heureux

• Decision Date: 19 November 1908
• Docket Number: No. 15,334.,15,334.
• Citation: 118 N.W. 565,82 Neb. 692
• Parties: MINNESOTA THRESHER MFG. CO. v. L'HEUREUX.
• Court: Nebraska Supreme Court

82 Neb. 692

118 N.W. 565

MINNESOTA THRESHER MFG. CO.

v.L'HEUREUX.

No. 15,334.

Supreme Court of Nebraska.

Nov. 19, 1908.

Syllabus by the Court.

In this state a court does not obtain jurisdiction over the person of a defendant by issuing a summons and leaving a copy thereof at his late place of residence, and a default judgment rendered upon such service is void.

A judgment void upon its face may be impeached collaterally.

An order of revivor does not impart any validity to a judgment void upon its face.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Franklin County; Adams, Judge.

Action by the Minnesota Thresher Manufacturing Company against Ephrem L'Heureux. Judgment for plaintiff, and defendant appeals. Reversed and remanded.R. A. Batty and H. F. Favinger, for appellant.

Dorsey & McGrew, for appellee.

GOOD, C.

Plaintiff, claiming to have a judgment against defendant, on which an execution had been issued and returned unsatisfied, obtained from the district court, on an ex parte hearing, an order appointing a referee, and requiring the defendant to appear before such referee to answer such questions concerning his property as might be propounded to him. Defendant filed a motion to set aside this order upon the ground that the original judgment was void for want of jurisdiction over the person of defendant by the court rendering the judgment. In this motion the defendant set out a complete transcript of the judgment and the proceedings leading up to it, which disclosed that default judgment for $706.61 had been entered against defendant in the county court in 1888. The transcript contained the return to the summons issued in that action, and it showed the summons to have been served on the defendant “by leaving a true and certified copy of the same with all the endorsements thereon at their late place of residence.” To this motion plaintiff interposed what is styled, in the record, a “general demurrer,” whereby all the allegations and recitals of the motion were admitted to be true. The trial court sustained the so-called demurrer, and entered an order overruling the motion. From this order, the defendant has appealed.

The first question presented for determination is whether the original judgment was void for want of jurisdiction of the county court over the person of the defendant. The statute requires a summons to be served by delivering a certified copy to the defendant or by leaving such copy at his usual place of residence. Plaintiff argues that service at the “late place of residence” should be held to mean usual place of residence. The terms “usual place of residence” or “usual place of abode,” as used in statutes authorizing substituted service of summons on a defendant, means the place of abode or place of residence at the time of the service. Blodgett v. Utley, 4 Neb. 25; Seymour v. Street, 5 Neb. 85;Earle v. McVeigh, 91 U. S. 503, 23 L. Ed. 398; Capehart v. Cunningham, 12 W. Va. 750; Ruby v. Pierce, 74 Neb. 754, 104 N. W. 1142. In the last-mentioned case the return of the officer showed that the summons was served by leaving a copy at the last usual place of residence of the defendant, and in the opinion it is said: “It will be presumed that in making this qualification the officer acted advisedly. The return as thus qualified conveys the thought, not that a copy of the writ was left at the present residence of the defendant, but at some place at which the defendant had formerly resided or made his home. It seems to us that the qualifying word, as used in the return, serves no purpose, save to distinguish between a past and present place of abode.” The word “late” as used in the officer's return above, means formerly; recently; existing not long ago: 25 Cyc. 161. It is defined by Webster: Existing not long ago; not long ago, but not now. The term “late place of residence” evidently means where the defendant had recently resided, but did not then reside. The return to the summons shows that it was not left at the usual place of residence, and indicates that it was served by leaving a copy at some other place than the usual place of residence. Plaintiff argues that there was an attempt at service and that there was a mere defect or irregularity in the return, and that the presumption obtains that the court had jurisdiction. We think the general rule is well settled that, where the attempted service is so irregular as to amount to no service at all, there can be said to be a want of jurisdiction. In Gandy v. Jolly, 35 Neb. 711, 53 N. W. 659, 37 Am. St. Rep. 460, it is held that: “If there is any irregularity in the manner of service on the defendant of valid process, he must take advantage of such irregularity by motion or other proceedings in the court where the action is pending.” But in that case, and in other cases holding to a like doctrine, it appears that there was an attempt at service which reached the defendant. The rule is that, if the attempted service does not reach the defendant at all, then there is a total want of service, and the court does not acquire any jurisdiction. Griffin v. McGavin, 117 Mich. 372, 75 N. W. 1061, 72 Am. St. Rep. 564. A judgment founded upon attempted service of summons which does not reach the defendant at all is absolutely void. Campbell Printing Press Mfg. Co. v. Marder Luse & Company, 50 Neb. 283, 69 N. W. 774, 61 Am. St. Rep. 573; Griffin v. McGavin, supra. 23 Cyc. 1075, 1076.

The plaintiff further argues that the presumption is that proper service was made, and that such presumption obtains notwithstanding the return of the officer shown in the record. Such presumption does obtain as to judgments of c...