State v. County of Kimball ( 1957 )

Messmore, J.

The State of Nebraska filed an application on May 5, 1955, in the district court for Kimball County, the purpose of which was to acquire possession of Section 16, Township 16 North, Range 55 West of the 6th P.M., in Kimball County as that section is established by a survey made in accordance with the order of the district court for Kimball County entered in 1933. The resurvey revealed that a portion of land previously thought to lie in the north half section of Section 21 was actually a part of Section 16.

The defendants, Robert E. Scott and Anna R. Scott, by their answer filed in the present action in opposition to the State’s application, insofar as pertinent to this appeal, alleged that the order of the court entered on December 7, 1933, was null and void for the reason that the service of process alleged to have been made upon these defendants in the city and county of Denver, Colorado, on the 12th day of June 1933, was in truth and fact never made; that the return of the deputy sheriff on said service of summons was false; that these defendants were never notified of the pendency of said action filed in 1933 in Kimball County; and that the plaintiff, State, was not entitled to relief prayed for in its application. Defendants prayed that the State’s application be dismissed.

The State filed a general denial in reply to the defendants’ answer.

On May 2, 1956, trial was had to the court on the State’s application, and evidence was presented by the parties. After the trial had concluded, the trial court found and decreed that there had not been due and proper service of process upon the necessary parties defendant at the time of the original hearing in 1933; that the order entered by the court at that time was null and void; and that the present application of the plaintiff should be dismissed. The court did dismiss the State’s application.

The State filed a motion for new trial. The trial court overruled the motion for new trial, and from the order overruling the motion for new trial, the State appeals.

On June 7, 1933, the State filed its petition in the district court for Kimball County against certain named defendants. In its petition the State alleged that it was the owner in fee simple of Section 16, Township 16 North, Range 55 West of the 6th P.M., in Kimball County; and that the correct corners and boundary lines of said land had been in dispute for a number of years and the plaintiff desired to have them established and made certain. The State further alleged that the correct corners and boundaries were as established by a survey made in 1928 by H. B. Lawson, deputy state surveyor, pursuant to statutory procedure. The petition further alleged that R. Elmer Scott was the record owner of, and Anna R. Scott his wife was interested in, the northeast quarter of Section 21 in said township and range which adjoined Section 16 on the south.

While the petition sets forth interests of other persons in connection with the subject matter involved in this action, any interest said persons so named in the petition may have had is not for determination in this appeal. We are concerned in this appeal only with the service had upon the defendants Scott.

The prayer of the petition was that the corners and boundaries of Section 16, Township 16 North, Range 55 West of the 6th P.M., in Kimball County be established by the court.

On June 7, 1933, affidavit was filed for service of summons out of state, showing R. Elmer Scott and his wife to be residents of Colorado and that summons could not be served upon them in the State of Nebraska.

We make reference to exhibit No. 1 which is as follows:

“Summons - Outside of State - District Court - Original

STATE OF NEBRASKA,) The State of Nebraska

) ss. Kimball County.

Kimball County ) TO THE SHERIFF OF County SAID COUNTY, GREETING:

You are hereby commanded to notify R. Elmer Scott and Anna R. Scott, his wife Defendants that they have been sued by The State of Nebraska Plaintiff, in the District Court of the 13th Judicial District in and for the County of Kimball and that unless they answer on or before the 10th day of July A. D., 1933, the petition of said Plaintiff filed against them in the Clerk’s Office of said Court, such petition will be taken as true, and judgment rendered accordingly. You will make due return of this summons on or before Monday, the 19th day of June, A. D., 1933.

SEAL WITNESS MY HAND and seal of said Court at Kimball Nebraska, this 7th day of June A. D., 1933.”

This summons was signed by the clerk 'of the district court.

“STATE OF NEBRASKA,)

) ss.

Kimball County ) I, C. A. Forsling sheriff County

in and for said County, and State of Nebraska, do hereby appoint the Sheriff or any Deputy Sheriff of Denver County, State of Colorado, to serve this writ.” Signed by C. A. Forsling.

We make reference to the return on the reverse side of the summons which reads as follows:

“STATE OF Colorado,)

) ss.

Denver County ) R. I. Shores being first duly County

sworn, deposes and says that he is the identical person who was appointed by the sheriff of Kimball County, State of Nebraska, to serve the within summons, that he served the within summons on the within named R. Elmer Scott and Anna R. Scott, his wife, on the 12th day of June, 1933, by handing to and leaving with each of them in Denver County, State of Colorado, a true and certified copy thereof with all the endorsements thereon.” Signed by R. I. Shores and subscribed and sworn to in the presence of a notary public on the 12th day of June, 1933. The fees for the service appear as follows: Service and return $2; mileage $1.05; and notary fees 50 cents.

On December 7, 1933, the trial court found that the plaintiff, the State, was the owner of all of Section 16, Township 16 North, Range 55 West of the 6th P.M., in Kimball County; and that the defendants owned the property adjoining thereto as alleged in the plaintiff’s petition. The court further found that the comers recognized by Lawson as original government corners in the northeast corner, the southeast corner, and the southwest corner of Section 16 were not original government corners. The court further found that there were no government corners on Section 16, that the corners and boundary lines of Section 16 were those found by assuming the northwest corner of Section 16 as located in said dependent resurvey to be an established corner and by assuming the original government corners as above mentioned to be the only original government corners within said township and establishing the corners and boundaries of said Section 16 under such assumed state of facts according to the rules of government surveys in effect on that date. The court adjudged and decreed that the boundary line of Section 16 be fixed and adjudicated according to its findings; and that if the plaintiff should locate upon the ground the boundary lines as adjudicated, it might, upon such notice to the defendants, or any of them, as the court might direct, be placed in possession of any part of Section 16 as defined, which was occupied by the defendants.

The result of the resurvey of 1954 was to locate Section 16 so that the boundary lines included approximately 40 acres of land that under the 1928 survey had been a part of Scotts’ quarter section. As between the 1928 and 1954 surveys, the Scotts would be deprived of approximately 40 acres of the area of their quarter section of land.

The record discloses that it was stipulated by the parties that the survey made by Hugh Dillon, the State Surveyor, filed and made a part of the State’s application in this case, was in direct accord with the findings of the district court for Kimball County and the judgment entered therein December 7, 1933.

It was stipulated that exhibit No. 1, which purports to be the original summons, outside of state, issued for service upon R. Elmer Scott and Anna R. Scott, his wife, in this action under date of June 7, 1933, and the return to such summons on the reverse side of exhibit No. 1 may be admitted and considered without objection in the action.

It was further stipulated that it was the contention of the plaintiff that the defendant Scott was in possession of 39% acres of land claimed by the plaintiff as being a part of Section 16; that this action was for the purpose of obtaining possession thereof; and that the defendants denied that the State was the owner of the said 39% acres, or that said acreage belonged to Section 16.

At this point the State rested its case.

Paul Wilger testified for the defendants that he had lived in Kimball County since 1919, and was familiar with the north half of Section 21, Township 16 North, Range 55, Kimball County. He farmed the north half of Section 21 for Robert Scott whose land was the northeast quarter of Section 21, and farmed John Kelly’s quarter section of land located in the northwest part of Section 21, at the same time he was farming a quarter section of land of his own. He further testified that Section 21 is just south of Section 16. He farmed this land from 1919 until 1937. In 1928, this witness personally submitted a petition to cause an election to have the township surveyed. The election was held, and as a result Lawson, a deputy state surveyor, made a survey. This survey located the boundary line and made no change in the boundary line which he had known since 1919.

Anna R. Scott, the wife of R. Elmer Scott and one of the defendants, testified that she had lived in Denver since 1921, and had never lived in Kimball County; that she was married to Mr. Scott in 1926; and that in 1933 she was employed by Doctors Hillkowitz and Freshman, and was also employed as registrar of the National Board of the Registry of Medical Technologists. She further testified that in June 1933, she and Mr. Scott were living in an apartment house located at 1801 Grant Street in Denver, and that she did not receive the summons, exhibit No. 1, at 1:40 p.m., June 12, 1933, which was on a Monday. She further testified that Mr. Scott was an auditor and worked at a different place than she did; that they prepared their breakfast in the apartment, did not go home for lunch, and generally had their evening meal together down town in Denver; and that she and her husband could not have been at the apartment at 1:40 on Monday, June 12, 1933. She testified further that she first heard about this case when the present tenant on their land in Kimball County came to Denver and called her husband, and her husband in turn called her. This was in 1955. She further testified that she worked in the doctors’ office from 8:30 a.m. until 5 p.m., and many times after that hour did her other work. She could not account for the particular day of June 12, 1933, but testified that in all probability she and her husband ate dinner down town, the same as any other day. After finishing the evening meal, Mr. Scott would go back to his work and she would return to her work. In 1933, Mr. Scott was working independently as an auditor. She further testified that no deputy sheriff ever handed her a summons notifying her of an action pending in Kimball County; and that she was positive about this fact.

Robert E. Scott testified that he went to Denver in the latter part of 1922, and had resided there since that time; that he had been referred to as R. Elmer Scott; that he and Mrs. Scott own the quarter section of land here involved, that is, the northeast quarter of Section 21, which he acquired in 1918 or 1919; that in 1933, he was doing accounting work for various companies and had several accounts; and that at that time he lived at 1801 Grant Street in Denver. He testified as to the positions his wife held. In June 1933, he was carrying a heavy schedule, working on a supplemental audit for an insurance company in the Central Savings Bank Building. He and Mrs. Scott would leave their apartment around 8:30 a.m. They would only cook their breakfast in the apartment. He could not recall the details of what happened on any specific day as far back as June 1933, but it would be very improbable that he and Mrs. Scott would be at the apartment at 1801 Grant Street in Denver at 1:30 or 1:40 p.m., June 12, 1933. He further testified that no sheriff of Denver County handed him personally a summons with reference to an action pending in Kim-ball County; and that he never received a summons of any kind. In 1955, he was called by a representative of an oil company who- asked him to check with reference to an abstract concerning his land, and regarding the boundaries of the land involved in the law suit in 1933. This witness replied to such representative that there had never been any question about the boundary line as far as he knew, and that he believed there was an error in the abstract. The next time he heard about this matter, the tenant farming his land came to Denver, stopped at his office, and inquired of him why the surveyors were on his property in Kimball County. On May 20, 1955, Mr. Scott made a trip to Kimball to endeavor to find out what the trouble was. He testified that by coincidence that day the town paper had a notice of a hearing to be had in court. That was when he heard about the present action. He further testified that had he received a summons, he and Mrs. Scott would have gone to Kimball, as it is only 175 miles from Denver; and that the boundary line used by his tenant on his quarter section of land is the same as it was when he acquired it in 1918.

A. W. Freshman, a physician, testified by deposition admitted in evidence that his office is in the Metropolitan Building in Denver; that he is very well acquainted with Anna R. Scott and has known her since 1923, before he was a physician and afterwards; that she was employed by his senior partner who has since died, and this employment was at the same office he occupied; that she was his secretary and bookkeeper, and had been at this same office address since 1923 and worked every day except Sunday; that she is employed from 9 a.m., or before, until 5 p.m.; that he had no specific or particular recollection of the date of June 12, 1933; and that the reputations of Anna R. Scott and her husband for telling the truth and being reliable were excellent.

The deposition of John W. Blodgett, chief clerk in the office of undersheriff of Denver County, Colorado, was admitted into evidence. This witness testified in regard to a certain document on file in his office described as a “jacket” containing the record of service upon the Scotts, which constitutes no part of the summons but is separate and distinct therefrom; that one of the documents in the jacket revealed that on June 12, 1933, at 1:40 p.m., service was made by deputy sheriff R. I. Shores on both R. Elmer Scott and Anna R. Scott; that from observation of the contents of the jacket, under the word “trips” this witness stated that it disclosed that in an effort to make the service three trips were made by a deputy sheriff to 1801 Grant Street, and one trip was made to 1255 South Pearl Street, both in Denver; that there is a tag, which is an exhibit, containing instructions to the deputy sheriff with reference to papers to be served; and that along with the papers to be served, as shown in this exhibit, information was given with reference to where R. Elmer Scott might be found. One such place was 1255 South Pearl Street where it was indicated he was employed as a bookkeeper for the Miracle Products Company, another was the address of his apartment, 1801 Grant Street or 333 East Sixteenth Avenue, and addresses where Anna R. Scott might be found. It required, in this instance, that service of the process must be personal. There were no other records directly concerning the service of process. On cross-examination Blodgett testified that the notation of trips written in pencil was intended as a memorandum to be completed by a deputy sheriff to- enable him to make a record of the mileage he had traveled in attempting to make service, for the purpose of determining the fee to be charged; and that such memorandum is valuable to the office for computing the mileage to be charged for making the service. Another document within the jacket was a receipt for $3.55 from the clerk of the district court for Kimball County for payment of fees in connection with the service on the defendants Scott. Another document in the jacket was a statement sent to the clerk of the district court for Kimball County requesting the payment of such fees. Blodgett further testified that no benefit for fees charged for making service inures to any person working in the sheriff’s office, such fees are transmitted to the city and county treasurer.

The State makes the following assignment of error: The district court abused its discretion and erred in holding that there was sufficient proof, or proof of a clear and convincing nature, of a type to justify impeachment of the sworn return of the deputy sheriff of Denver County, Colorado.

The question involved in this appeal is whether or not the evidence is sufficient to impeach the return made on the summons.

In Westman v. Carlson, 86 Neb. 847, 126 N. W. 515, appears language that is applicable to the instant case and recognized in several cases in this jurisdiction, as follows: “The return of the officer is part of the judicial record of the case. It appears to be regular on its face. It shows in addition to the return that the sheriff charged mileage and fees for copies of the summons. He performed his duties under an oath of office and the penalties of an official bond. As to serving the writ and making the return, the presumption is that the officer performed his duty. Parker v. Starr, 21 Neb. 680. The return of a sheriff that he served a summons on defendant can only be impeached by clear and convincing proof. Connell v. Galligher, 36 Neb. 749; Unangst v. Southwick, 80 Neb. 119. This doctrine is essential to the integrity and permanency of judicial records.” The court held: “Where the return of a sheriff recites that he served the summons, on which the return is indorsed, the presumption is that he performed his duty in making the service. * * * The return of a sheriff that he served a summons on defendant can only be impeached by clear and convincing proof.”

As stated in Unangst v. Southwick, on rehearing, 80 Neb. 119, 116 N. W. 864: “We fear that it would be a dangerous precedent to adhere to a rule which would permit an officer’s return to be superseded by such evidence as this. It would offer an opportunity for the practice of fraud and perjury, and the due administration of justice might be considerably hampered by dishonest litigants, who, after making no response to the process of the court, would appear collaterally and defeat the officer’s return.” However, we do not charge such motives to the defendants in the instant case. We do believe the circumstances in the instant case strongly corroborate the sheriff’s return.

As stated in Janous v. Columbus State Bank, 101 Neb. 393, 163 N. W. 327: “When a judgment is attacked collaterally, or when a long time after the judgment is entered the correctness of the sheriff’s return is assailed, great faith and credit must be given to the formal return of the officer.”

In the case of De Lair v. De Lair, 146 Neb. 771, 21 N. W. 2d 498, this court said: “The rule is well established in this state that a sheriff’s return on a summons is prima facie proof of the service therein indicated. * * * The return of an officer cannot be impeached except by clear and convincing evidence.”

A review of cases above cited appeared in the De Lair case, together with other cases to which we make reference.

We stated in Connell v. Galligher, 36 Neb. 749, 55 N. W. 229: “ ‘Upon grounds of public policy, the return of the officer, even though not regarded as conclusive, should be deemed strong evidence of the facts as to which the law requires him to certify, and should ordinarily be upheld, unless opposed by clear and satisfactory proof.’ ” See, also, Wyland v. Frost, 75 Iowa 209, 39 N. W. 241; Campbell v. Harvard State Bank, 103 Neb. 562, 173 N. W. 587; Ault v. Stewart, 113 Neb. 47, 201 N. W. 639.

The defendants seek to impeach the service in the instant case on the grounds that the service of summons at the place and time shown on the record jacket in the office of the Denver County undersheriff could not have been had upon them on Monday, June 12, 1933, at 1:40 p.m., the reason being that each of the defendants was employed at a different place in Denver; that they were required to leave home early in the morning and return to their home late in the evening; and that neither the defendants nor any other witness could recall the events happening on June 12, 1933, some 23 years ago. The record jacket relating to service on the defendants at 1:40 p.m., June 12, 1933, is not conclusive, it is not sworn to with certainty that the defendants were so served. In any event, this record constitutes no part of the summons or the return thereon. The return of the summons itself does not give the alleged time of service. That testimony was taken from the record jacket. The clerk in the sheriff’s office testified that the space referred to in the record jacket with reference to service of summons where the time was written in, was the place for the deputy to make memorandum for his convenience and the convenience of the office in computing mileage, and was not information that was part of the sworn statement of the return. In fact, the service of this summons, insofar as the return thereon is concerned, could have been had on the defendants at any place in Denver County, Colorado.

We conclude that the type of evidence submitted by the defendants is not that of clear, convincing proof necessary to impeach the sworn statement of an officer made in the course of his duty. The trial court had jurisdiction over the defendants and the subject matter of the action at the time the judgment was rendered on December 7, 1933. The trial court erred, as contended for by the State.

The State assigns as error and contends that a judgment which recites that the parties were present in court, and where the record shows a service and return of summons sworn to by a deputy sheriff, under such circumstances the judgment is not subject to collateral attack to show that the court never had jurisdiction over the defendants. While there may be merit to this assignment of error, in view of our holding we deem it unnecessary to discuss it.

For the reasons given herein, we reverse the judgment of the district court and remand the cause with directions to enter judgment for the plaintiff, awarding to it all of Section 16, Township 16 North, Range 55 West of the 6th P.M., in Kimball County, Nebraska, as established by the resurvey which is a part of the record in this case.

Reversed and remanded with directions.