McCoy v. Dyer , 1925 Ohio Misc. LEXIS 1253 ( 1925 )

BY THE COURT.

Henry McCoy brought an action against Ralph Dyer and S. M. Bramson, asserting an equitable interest in, or title to, certain lands in Cuyahoga County, and on default of the defendants, obtained the decree prayed for.

At a subsequent terms, the defendant, Bram-son, sought by petition, to vacate the decree and cancel a deed made pursuant thereto. After a hearing on this petition to vacate, an appeal was taken to the Court of Appeals where the matter was heard upon the testimony. The ground urged in the petition to vacate was that Bramson was not-served with summons. The Court held:

1. The record shows that attempted service was had upon Bramson on March 8th, 1923, “by leaving a true and attested copy thereof with all the endorsements thereon at his usual place of residence.”

2. There is a strong presumption that the return of an officer on a writ is true, but this presumption is weakened when the recital of fact in the return is not such a fact as is within the officer’s personal knowledge.

3. The evidence compels the conclusion that Bramson knew nothing of the summons being left at his father’s residence, and there is no doubt that the default made by him was due to that fact.

4. The evidence, moreover, is sufficiently strong to rebut any presumption arising from the return that Bramson was in March, 1923, residing at his father’s home. It follows that he has never had his day in court, and to that he is entitled.

5. It is ordered, therefore, that the decree taken against Bramson by default in this case be set aside, and that he be given the ten days within which to file an answer to the petition.

Decree on appeal for the defendant Bram-son.