Sawdey v. Pagosa Lumber Co.

• Decision Date: 19 October 1925
• Docket Number: 11207.
• Parties: SAWDE v. PAGOSA LUMBER CO.
• Court: Colorado Supreme Court

240 P. 334

78 Colo. 185

SAWDE v. PAGOSA LUMBER CO.

No. 11207.

Supreme Court of Colorado

October 19, 1925

Department 2.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by the Pagosa Lumber Company against C. I. Sawdey. From an order overruling a motion to set aside a default judgment defendant brings error.

Affirmed.

Ernest Morris and Rose G. Manion, both of Denver, for plaintiff in error.

Dawson & Wright, of Denver, for defendant in error.

DENISON J.

In 1922 the lumber company had judgment by default against the plaintiff in error. October 23, 1924, he filed a motion to set aside the judgment on the ground that the summons was not served upon him. Affidavits were filed pro and con on that point and the court below denied the motion.

Upon those affidavits we think the court was right in finding that the summons was actually served. The plaintiff says, however that the return was insufficient, because made by an unofficial person and not verified by him by oath, and although a proper and amended return under oath was filed after the rendition of the judgment, yet the judgment was void for want of jurisdiction.

We cannot agree with that proposition. It is the service that confers jurisdiction over the person of the defendant, not the return The return serves no purpose, except to show to the court that there has been service and to make a record thereof, so that the court's jurisdiction will appear forever. Code 1921, §§ 34, 49, 50; Morrissey v. Gray, 160 Cal. 390, 117 P. 438, 442; Lupkin v. Russell, 108 Miss. 742, 67 So. 185; Graves v. Macfarland, 58 Neb. 802, 79 N.W. 707; Spencer v. Rickard, 69 W.Va. 322, 71 S.E. 711. The same has also been held in Kansas, Oklahoma, Pennsylvania, Missouri, Oregon, South Dakota, and in the federal courts. Ranch v. Werley (C. C.) 152 F. 509. Munson v. Pawnee Cattle Co., 53 Colo. 337, 126 P. 275, cited by plaintiff in error, is not in conflict with these authorities.

But the plaintiff in error says that neither the court, nor the sheriff, nor the person who served the writ, has a right to amend the return. We do not agree with that. It is the court's duty, as we have many times held, to amend its record to make it show the truth. Sproul v. Monteith, 66 Colo. 541, 185 P. 270; Morrissey v. Gray, 160 Cal. 390, 117 P. 438. We think, also, that it is the duty of the sheriff or the person who has acted in the service, to amend his return, by leave of court, as soon as he...