Bond v. Wilson , 8 Kan. 228 ( 1871 )

The opinion of the court was delivered by

Kingman, O. J.:

The sheriff’s return on the summons in this case is, that it was executed “by leaving a copy thereof at the usual place of residence of the defendant.” A motion was made to set aside the return. On this motion an affidavit was read which shows that the defendant is a non-resident, and had been for several months before this action wss commenced, and had no residence in this State; that the copy of the summons was left at the house of the father of the defendant, who makes the affidavit. The court set aside the sheriff’s return.

Can a sheriff’s return be thus shown to be false? This is a subject much discussed in this country by the courts, and no uniformity of decision is to be found. It is a general rule of the English common law that the court will not try the truth of an officer’s return on a motion to set aside the proceedings, but the party must resort to his action against the sheriff for false return: Comyn’s Dig., Bei/wrn, E, 2. The English rule is convenient, and under the practice there is not open to the objections that lie to it in this country where the statutes have made such radical changes in process as well as in practice. At common law the action was commenced by a service of the writ by the officer. The declaration was afterwards served by delivering a copy, and this service was to be proved by affidavit; and unless special bail had been taken, the personal service of the declaration was necessary: Com. Dig., Met., Pleader G, 1; nor would a declaration be delivered till the defendant appeared or was in custody': Com. Dig., Pleader, G, 2. Under such a system a judgment without actual notice was almost an impossibility, and the rule as to the conclusiveness of the officer’s return was founded in convenience, without likelihood of its working injustice. In the systems of practice adopted in this country, the safeguards being removed, it has become necessary to adapt the rule to the altered condition of the law. The sheriff not only executes original process by service upon the defendant personally, but by leaving a copy at his usual place of residence. The sheriff also determines whether a minor is over fourteen years of age, and serves accordingly. He also determines who is president, mayor, chairman, or chief officer of a board of directors; and also what is the usual place of business of a corporation, and who has charge thereof, and serves his process accordingly. Is his determination of such questions final? Must the defendant suffer the judgment to stand in such cases, and resort to his remedy against the officer? It must be borne in mind that no rights of third parties have intervened, but the only parties interested are before the court. The controversy is material, involving questions vital in their character, and going directly to the jurisdiction of the case. We find upon examination that the courts have generally held the sheriff’s return an mesne and ji/nal process conclusive between the parties and privies, though this is by no means a rule of universal application; but that in cases of original process there has been a general disposition to let in the truth. This is still more necessary under article four of our code. Without farther discussion we will refer to some of the adjudged cases to show that the original doctrine is much modified to correspond to the changes in our practice. In Connecticut the courts have always held the rule to be that the sheriff’s return was onlj prima facie evidence: Watson v. Watson, 6 Conn., 334. In New Hampshire a case precisely like the case at bar arose, and the defendant was allowed to show the falsity of tbe sheriff’s return, as was done in' this case: Wendell v. Mugridge, 19 N. H. 112. In Rowe v. Table Mountain Water Co., 16 Cal., 441, it was held the return of the sheriff that the persons on whom the summons was executed were the president and secretary of the company was jprima facie evidence that they were such officers, and in the absence of any showing to the contrary allowed the judgment to stand. In Carr v. Commercial Bank of Racine, 16 Wis., 50, the sheriff’s return was served on “ H. S. D., President,” and judgment was taken by default. Upon affidavits showing that H. S. D. was not president or any other officer of the bank at the time of service, the judgment was set aside as rendered without first having jurisdiction of the person. See also Smith v. Law, 5 Iredell, 197; 4 Rand, 189; Freeman v. Cruikshanks, 3 McCord R., 84; Fleece v. Goodman, 1 Duvall, 306; Castner & Hinckly v. Symonds, 1 Minnesota. So far the authorities go. Our code has liberal provisions to prevent the multiplicity of suits when the matter in controversy can be settled in one action. In the course taken with this case in the court below the action was direct to settle the question in dispute, and was in the precise spirit of the code. To have refused to hear the affidavits and give judgment against a party not served, and drive him to an action against the sheriff for a false return for his redress, would neither have been justice nor in accordance with the code.

We are aware it is a question of evidence and not of pleading; but we know of no statute that makes a sheriff a final and exclusive judge of where a man’s residence is, or what is the age of a minor, or who are the officers of a corporation, or where their place of business is; and when the statute made it the duty of the sheriff to ascertain these facts it did not make his return of such facts conclusive. Of his own acts his knowledge ought to be absolute, and himself officially responsible. Of such facts as are not in his special knowledge he must act from information, which will often come from interested parties, and his return thereof ought not to be held conclusive. How it may be on mesne and final process we need not determine. In such cases both parties are in court and can have amendments to return made if the sheriff is convinced of his error. ¥e only determine just the case before us. "We think the court decided correctly, and the judgment is affirmed.

All the Justices concurring.