Leonard v. Brady

DAVIS, District Judge.

— This action is pending on an appeal by the plaintiff, Mabel Leonard, from an order of the district court setting aside a default entered by the clerk against the defendant, James H. Brady. It appears that an alias summons was issued by the clerk, but that no record of that fact was made on the register of actions or otherwise in the clerk’s office.

The original alias summons was served on Brady by a deputy sheriff of Bannock county and the officer’s return of service was made on a purported copy of the alias summons not signed or sealed by the clerk, and no order was ever made by the district court authorizing the substitution of the copy for the original alias summons. The certificate of service made by the deputy states that service was made on March 14, 1914. Some two months after making the certificate the officer made an affidavit to the effect that the summons had been served March 15, 1914. The attorney for Brady thereupon filed a written motion to set aside the default upon the ground that it had been prematurely entered, which would have been true had service been made upon March 15th, but if made upon March 14th, the forty days allowed by law had expired when default was entered. Subsequently the officer’s certificate of service was shown to him and he repudiated the first affidavit and made another to the effect that the date named in the certificate was the actual date upon which the alias summons had been served.

During the argument, when the motion came on for hearing before the district judge, a purported copy of the aUas summons containing the return of the officer was produced by the attorney for the plaintiff, together with the second affidavit of the officer, and the attorney for the plaintiff then made a motion that certain defects in the return be corrected. The attorney for Brady had not seen such copy of the alias summons theretofore, nor had a copy of the deputy’s second affidavit nor of plaintiff’s motion to correct the defects in the record with reference to service and his affidavits in support thereof been served upon the defendant, but the entire matter was apparently considered by the judge nevertheless. He thereafter denied plaintiff’s motion to correct the return of service, and sustained defendant’s motion to set aside the default, ruling “that the clerk did not have authority to enter and should not have entered the default of .the defendant, James H. Brady, at that time, and the said defendant, James H. Brady, is given twenty days from the date hereof in which to answer and plead herein.”

From said order setting aside the default against Brady the plaintiff appealed to this court, contending that the lower court erred in making its order setting aside the default of James H. Brady.

Appellant contends that there is but one question for the supreme court to decide, and that is whether or not under the showing made the district judge had any discretion to find that the time allowed defendant to answer had expired.

Respondent claims that the district judge considered the circumstances affecting the service and that this court may also properly determine whether or not the clerk had authority to enter such default at the time it was entered, although the motion to set aside the default referred only to the insufficiency of time as a ground for setting aside the default. It is asserted that in view of the manner in which such second ground first came to the attention of the attorneys for Brady at the hearing on the motion, and the fact that it was before the district judge at that time, justifies this court in determining on appeal whether or not such ground was sufficient to justify the trial court in setting aside the default. We concur in this view.

Ordinarily a court should sustain the official certificate of an officer supported by his affidavit, rather than his affidavit alone to the contrary, but the entire showing in this case surely vested some discretion in the trial judge, and it does not appear that there was such an abuse of such discretion as to require a reversal of his action.

Where a district judge considers matters in support of a motion to set aside a default, first brought to his attention through acts of the plaintiff when resisting such motion, which facts thus came to the knowledge of the moving party for the first time at the hearing, and were therefore not assigned as grounds in support of his motion to set aside the default, it is proper for the supreme court to determine whether or not such matters appearing in the record on appeal furnish sufficient grounds to sustain the action of the district judge in granting such motion. And where a clerk of the district court has entered a default against a defendant based on a certificate of service by a deputy sheriff attached to an unauthenticated copy of an alias summons against such defendant, and the clerk had no record in his register of actions or otherwise to show that the original of such purported copy of the alias summons had been actually issued in due form, and the court refused to allow the return of service to be corrected, or the copy of the alias summons to be substituted for the original, such clerk did not have authority to enter default against such defendant at that time. Sec. 4143, Rev. Codes, requires the return of service to be accompanied by the original summons instead of by a copy thereof, and while it is not intended to hold that service duly certified upon an authenticated copy would not justify a default, it is clear that where there is no record in the register of actions of the issuance of the original summons or otherwise in the office of the clerk, and there is no valid summons accompanying the certificate of service, the clerk has no authority to enter a default upon delivery to him of an unsigned and unsealed copy of a purported alias summons containing a return thereon. He has no way of knowing from the record whether or not such an alias summons had ever been issued, and authority to determine whether or not a paper tendered as a copy of an original instrument is a true copy of such instrument is vested in the district court alone by sec. 4923, Rev. Codes. And while the service of an original summons upon a defendant would be equally as effective as a copy to give him notice of the action and the time within which he should appear, the record should show such service in a more formal manner than in this case before the entry of a default against him by the clerk would be authorized.

The district court did not abuse its discretion in vacating said clerk’s default, and the order appealed from will not be disturbed. Costs on appeal awarded to respondent.

Budge and Morgan, JJ., concur.