Howard v. Preston

Currie, C. J.

(dissenting). I respectfully dissent and would affirm the order of the circuit court.

A presumption of regularity attends a judgment of a court of general jurisdiction and it is also presumed that jurisdiction over the parties has rightfully been acquired and exercised.¹ The burden is upon the party asserting want of jurisdiction to show such want.² The majority opinion is grounded on thé premise that the burden of proof was on the plaintiff to establish that Michael D. Preston had authority to admit service for his wife. This renders nugatory the presumption of jurisdiction that attached to the circuit court’s judgment of foreclosure and sale.

Here defendant Dorothy M. Preston did not meet her burden of proof, which was to prove that her husband was not authorized to admit service in her behalf. As the majority opinion states the learned trial judge did not believe Michael D. Preston’s testimony. Furthermore, the trial court was entitled to apply the general rule, that the failure to call a material witness, whom it would be more natural for such party to call than the opposing party, raises an inference against the former.³ If there is one thing that sticks out like a sore thumb in the record of this case it is the failure of Mrs. Preston, who is the person in whose name the attack upon the jurisdiction of the court is being made, to take the stand and testify with respect to the crucial issue which lay entirely within her own knowledge. Even the affidavit which launched the attack was subscribed by her husband and not by her.

1 21 C. J. S., Courts, p. 149, sec. 96a.

2 Dellinger v. Clark (1951), 234 N. C. 419, 67 S. E. (2d) 448.

3 Lubner v. Peerless Ins. Co. (1963), 19 Wis. (2d) 364, 371, 120 N. W. (2d) 54; Feldstein v. Harrington (1958), 4 Wis. (2d) 380, 90 N. W. (2d) 566; 2 Wigmore, Evidence (3d ed.), p. 162, sec. 285.