Wilson v. McCornack , 10 Okla. 180 ( 1900 )

Opinion of the court by

Hainer, J.:

The sole question presented by the record and discussed in the briefs of counsel is the validity of the service of the notice to revive the judgment. The record discloses that the notice to revive the judgment was served upon the defendant by the attorney of record and not by the sheriff of Oklahoma county. It is contended by the plaintiff in error that service of notice made by the attorney of record on the plaintiff is a valid service, and that the statute does not require the sheriff to serve such notice and make return thereon in order to revive a judgment. The district court held that the notice for the application to revive a dormant judgment must be served in the same manner and returned in the same Time as a summons, and that such service must be made by the sheriff. We think that this is the correct interpretation of the statute.

Section 454 of our civil code provides as follows:

“If a judgment became dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment.”

Section 442 provides:

“If the order is made by the consent of the parties, the action shall forthwith stand revived; and, if not made by consent notice of the application for such order shall be served in the same manner and returned within the same time as a summons, upon the party adverse to the one making the motion; and if sufficient cause be not shown against the revivor, the order shall be made.”

Section 39 provides that:

“The summons shall be issued by the clerk, upon a written praecipe filed by the plaintiff; shall be under the seal of the court from which the same shall issue, shall be signed by the clerk, and shall be dated the day it is issued. It shall be directed to the sheriff of the county, and command him to notify the defendant or defendants, named therein etc.” * * *

Section 61 provides that:

“The summons shall be served and returned by the officer to whom it is delivered, except when issued to any other county than the one in which the action is commenced.” * * *

Section 63 provides:

“That the summons shall be served by the officer to whom it is directed, who shall indorse on the original writ the time and manner of service. It may also be served by any person not a party to the action, appointed by the officer to whom it is directed. The authority of such person shall be indorsed on the writ- When the writ is served by a person appointed by the officer to whom it is directed, or when the service is made out of this Territory, the return shall be verified by oath or affirmation.”

It will thus be seen from these various provisions of our civil code that summons must be served and returned by sheriff, or by some person duly authorized by him to make such service and return. We think that the language of section 442 of our code which provides that notice for the application for the revivor of a judgment shall be served in the same manner and within the same time as a summons, is mandatory in its terms. It is clear and unambiguous, and there is no room for construction.

The judgment of the district court was right, and it is therefore affirmed.

Burwell, J., having presided in the court below, not sitting; all of the other Justices concurring.