Shanholtzer v. Thompson

• Decision Date: 13 July 1909
• Citation: 103 P. 595,24 Okla. 198,1909 OK 195
• Parties: SHANHOLTZER v. THOMPSON et al.
• Court: Oklahoma Supreme Court

103 P. 595

24 Okla. 198, 1909 OK 195

SHANHOLTZER v. THOMPSON et al.

Supreme Court of Oklahoma

July 13, 1909

Syllabus by the Court.

An affidavit filed in a case, executed before a notary public who is attorney of record appearing for the party offering the same, is voidable, and on being assailed for this reason in the absence of a request for amendment, where such a course is permissible, should be held void.

An affidavit to be used as evidence should state facts positively, and not merely upon belief.

A judgment entered by default, where there is no proof of service of summons, when assailed by the defendant for this reason, should be set aside and leave given defendant to plead.

Error from District Court, Nowata County; T. L. Brown, Judge.

Action by J. T. Thompson and another against P. H. Shanholtzer. Judgment was rendered for plaintiffs, and defendant having thereafter moved to strike from the files certain affidavits and to vacate the judgment and be allowed to defend, and his motions having been denied, he brings error. Reversed and remanded, with instructions to set aside the judgment.

W. J Campbell, for plaintiff in error.

Tillotson & Elliott, for defendants in error.

DUNN J.

January 24, 1908, defendants in error, as plaintiffs, filed their petition in the district court of Nowata county, against plaintiff in error, P. H. Shanholtzer. The record shows that on the same day summons was issued, but that the same was never returned showing service. On March 6, 1908, there was filed in the office of the clerk of the district court an affidavit by the clerk showing that on the 24th day of January, 1908, on a præcipe duly filed, summons was issued under the seal of the court to the sheriff of the county; also, an affidavit by the sheriff of the county that he directed one of his deputies to make service of this summons; also, an affidavit on the part of said deputy that he executed the summons by serving a copy of the same on the defendant, that the original of said summons had been misplaced, that the whereabouts of the same was unknown to him, and that he had never made return of the summons, but that the same had been duly and properly served according to law. All of these different affidavits were verified as correct upon the belief of the parties making them, and were sworn to before Thomas E. Elliott, who was a notary public and who was appearing as one of the attorneys of record for the plaintiffs. Upon this showing of service upon the defendant, and in the absence of any answer, demurrer motion, or other plea or appearance, the court entered judgment in favor of plaintiffs and against defenda...