Wilson v. Shipman

• Decision Date: 18 May 1892
• Citation: 34 Neb. 573,52 N.W. 576
• Parties: WILSON, SHERIFF, v. SHIPMAN.
• Court: Nebraska Supreme Court

34 Neb. 573

52 N.W. 576

WILSON, SHERIFF,

v.SHIPMAN.

Supreme Court of Nebraska.

May 18, 1892.

Syllabus by the Court.

1. The return of an officer on a summons that he had personally served a copy of the same on the defendants may be contradicted and disproved by the defendant. But it must be clear from the evidence and circumstances that the return is untrue; otherwise it is the duty of the court to sustain it.

2. To authorize the enjoining of a judgment, it must appear that there is a good defense to the merits, and that the judgment is contrary to equity and good conscience.

Error to district court, Buffalo county; HAMER, Judge.

Action by J. E. Shipman against John Wilson, sheriff, to enjoin him from levying an execution under a certain judgment. On a judgment granting the injunction, defendant brings error. Reversed, and action dismissed.Calkins & Pratt, for plaintiff in error.

R. A. Moore, for defendant in error.

MAXWELL, C. J.

This is an action to enjoin a judgment of a justice of the peace. The court below found that there had been no personal service on the defendant, and enjoined the judgment. It appears from the record that in December, 1888, Moore & Shipman were engaged in business on North Sixteenth street in the city of Omaha; that this store was in charge of Miss Allen; that on the 8th of that month a bill for merchandise for the sum of $227.59 furnished by O. R. Tennis & Co. was presented to Moore & Shipman at their place of business; that no objections were made to the bill itself, but it was claimed by Mr. Moore that time had been given for a part of the claim, and therefore he refused to pay the same. He then drew a check in the name of Moore & Shipman, in favor of himself, for the sum of $69.85, and with a Mr. Robertson, who had the claim for collection, went to the bank, and drew that sum, and paid the same; that Mr. Robertson notified Moore & Shipman that he understood the entire claim to be due, and that he would bring suit for the remainder. There seems to have been an agreement that they would accept service. Mr. Robertson thereupon began an action for the balance of the account, and took the summons to the store of Moore & Shipman, and began to write an acceptance of service on the summons, when, in consequence of some statement of Mr. Moore, he was induced to call an officer to serve the summons. He found a constable at the door of the store, and handed him the summons to serve, both Moore and Shipman being then in the store. The constable testifies that he went immediately into the store, and served the summons, and his return on the same is in due form. On the return day of the summons, Moore & Shipman failed to appear, and the justice rendered judgment against them for the sum of $158 and costs. A transcript of the judgment was then filed in the district court, and an execution issued thereon, which was levied upon certain real estate of Shipman, who thereupon brought this action to enjoin the judgment, upon the sole ground that he had not been served with summons. It may be conceded that the jurisdictional facts alleged in the record of a judgment of a court of inferior jurisdiction may be controverted. Bank v. Balcom, 35 Conn. 351; Culver's Appeal, 48 Conn. 165; Cooper v. Sunderland, 3 Iowa, 114;Salladay v. Bainhill, 29 Iowa, 555;Mastin v. Gray, 19 Kan. 458, annotated in 17 Amer. Law Reg. 564; Harlow v. Pike, 3 Greenl. 438; Ainge v. Corby, 70 Mo. 257;Bigelow v. Stearns, 19 Johns. 39; People v. Cassels, 5 Hill, (N. Y.) 164; Barber v. Winslow, 12 Wend. 102;Relyea v. Ramsay, 2 Wend. 602;Porter v. Bronson, 29 How. Pr. 292;Adams v. Railroad Co., 10 N. Y. 328; 12 Amer. & Eng. Enc. Law, 148c. In a...