Allen v. McIntyre , 56 Minn. 351 ( 1894 )

Mitchell, J.

This is an appeal from an order setting aside a default judgment on the ground that the summons had never been served on the defendant.

The proof of service was the affidavit of one Belknap that he served the summons and complaint, personally, on the defendant, in the city of St. Paul, on November 9, 1891. It is settled that the proof of service, even when consisting of the return of an officer, is not conclusive, as against direct proceedings in the action to set aside the judgment. Crosby v. Farmer, 39 Minn. 305, (40 N. W. 71.)

But such proof should ordinarily be upheld, unless opposed by clear and satisfactory evidence. Jensen v. Crevier, 33 Minn. 372, (23 N. W. 541.) It would be dangerous practice to permit tbe return or affidavit made at the time to be overcome by tbe mere uncorroborated affidavit, made long afterwards, upon slippery memory, of tbe defendant, to tbe effect that no service was ever made upon bim. But tbis record does not, as plaintiffs seem to suppose, present such a case. It is a significant fact that although tbe judgment was obtained in November, 1891, and defendant was and continued a resident of tbe same city as tbe plaintiffs, and was actually engaged in business, and regularly, or at least frequently, buying large quantities of goods from plaintiffs, and frequently in their place of business, — not less than six times within a month after this action is alleged to have been commenced, — yet it does not appear that during all that time they ever spoke to bim about tbe matter, or attempted to collect their judgment, until August, 1893; and no explanation of tbis course of conduct is attempted to be given.

It is also to be noted that plaintiffs offered no evidence in rebuttal, except tbe affidavit of tbe party who claimed to have made tbe service, in substantially tbe same terms as bis original affidavit on tbe summons, and without any reference to tbe particular place where, or tbe circumstances under which, be claimed to have made tbe service. Tbe affidavit of tbe deputy sheriff to whom tbe execution was delivered in August, 1893, is of little or no importance.

Tbe delay of tbe defendant in moving to set aside tbe judgment is explained by bis affidavit that be was not aware that any action bad been commenced until shortly before be made tbis motion.

Upon tbe whole record, we could not say that the court was not justified in setting tbe judgment aside.

Order affirmed.

(Opinion published 57 N. W. Rep. 1060.)