Brown v. Gaston & Simpson Gold & Silver Mining Co. , 1 Mont. 57 ( 1868 )

Knowles, J.

This was an action against the above-named respondents, a corporation organized under the laws of the State of Pennsylvania to carry on the business of mining in this Territory, to foreclose a mechanic’s lien.

The sheriff who served the summons made the following return of service thereof:

“I served the within summons by reading the same to Rodman Carter, and delivering to him a copy thereof; also delivered to him a copy of complaint. All done in Edger-ton county, M. T., December 9, 1867.”

On the 7th day of January, 1868, the appellant claimed of the clerk of the district court a default against the respondent, which was duly entered. On the same day, at the request of appellant, the clerk entered up a judgment against respondent for the amount claimed in the complaint, and an order of sale of the described premises. The defendant, within two days thereafter, filed his motion to have the judgment vacated and the default set aside, for the reason, among others, that the service of summons was defective.

The court held, on the hearing of this motion, that the proceedings were defective, but gave the appellant one week in which to file affidavits, showing that Rodman Carter was a general managing agent of the said corporation, the respondent. Affidavits were filed, which the court held were sufficient, and it was ordered that the judgment should stand as the judgment of the court. On the 11th day of February the judge reversed this order, on the ground that it was made-out of term time, and that on the adjournment of the court all causes and motions had been continued for the term. On the 6th day of March following the court rendered a decision, holding the service good, but, at the same time, setting aside the judgment and default, and giving the respondent time to file his answer.

From this order the appellants appeal to this court.

If there was a good service of summons upon respondent, and a default had been regularly entered, and a judgment thereon, there is no doubt that it was improper practice to allow the respondent, without any showing of excusable neglect or inadvertence, to have the judgment vacated and the default set aside, and leave to file an answer to the complaint. Does the record present such a case % No matter what the reasons which induced the court to sustain the motion may have been, still, if there were legal grounds presented to him which warranted his ruling, it is the duty of this court to sustain it.

It is not contended that the return of the sheriff shows sufficient service of summons to warrant the judgment. The appellant, however, sought to remedy this defect, by filing affidavits of third persons to show that Carter was a managing agent. When an officer serves a summons the usual way, and we are inclined to say the only way of proving that service is either by the return of the officer himself or the written acknowledgment of the party served. The attempt to amend service of summons by the affidavits of persons who did not make the service, is certainly doubtful practice, but when these parties do not pretend to have been present when service was made, or to know that the sheriff did make service on the particular individual described, we are sure it is improper practice. Not one of the persons making affidavits pretend to know that the Carter they are deposing concerning is the one upon whom the sheriff made service. There is another point connected with these affidavits which strikes us forcibly. One sets forth what Carter told him was the position in the company which he held, which is certainly hearsay testimony. Another deposes concerning the contents of a written power of attorney which he says Carter told him was sent him by telegraph. It is well, perhaps, he does not depose concerning the signatures to this power of attorney. The third affidavit sets forth certain transactions in which Carter was engaged as the agent of the company. This, however, so far as it is not hearsay, does not show that his agency pertained to all the affairs of the company. If it did not, it has been held that he was not what is denominated a general managing agent, and service upon him would not have been sufficient. Such affidavits, we are of the opinion, are insufficient to amend a return of a sheriff of service of summons if such practice be proper.

Where the service of a summons is defective, it is not error for the court to sustain a motion to vacate a judgment and set aside a default, and allow the defendant to make answer to the merits of the complaint.

In accordance with these views the order of the court below is affirmed, and the cause remanded for further proceedings.

Affirmed.

Waeben, C. J., concurred.