Karnes v. Ramey

Hart, J., (after stating the facts). This court is committed to the doctrine that an officer’s false return of service of process shall not preclude the defendant from showing the truth, in a proper proceeding, to be relieved from the burden of a judgment or decree based thereon. One who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense. State v. Hill, 50 Ark. 458, 8 S. W. 401; First National Bank v. Dalsheimer, 157 Ark. 464, 248 S. W. 575; and First National Bank of Manchester v. Turner, 169 Ark. 393, 275 S. W. 703. As will appear from our statement of facts, the mortgage foreclosure decree which is sought to be set aside in this case recites that the defendants were duly served with summons in the time and manner provided by law, but made default. This recital is prima facie evidence of the facts stated, but, under the principle of law decided in the cases above cited, the defendants may introduce testimony to contradict the recital of the decree; but the burden of proof is upon them. The return of the officer in the foreclosure suit shows that the defendants in that action, J. W. Karnes and Mary Karnes, who are the plaintiffs in the case at bar, were duly served with summons in the time and manner prescribed by law. This constituted the official oath of the officer as to the facts stated in his return. We are of the opinion that the plaintiffs in this action have not satisfactorily met the burden laid upon them in contradicting the return of the officer as to the service of summons upon them. Mary Karnes, the wife of J. W. Karnes, admitted that she was served with process by the deputy sheriff at her residence in -Berryville, Carroll County, Arkansas. J. W. Karnes admits that his wife told him that the sheriff had left a paper with her, but that she did not say that any was left for him, and that he never saw the paper. Thus it will be seen that Mrs. Karnes admits in her testimony that service was had upon her, and J. W. Karnes admits that he was informed by his wife that a paper had’been served upon her. If he had used reasonable diligence, this fact would have put him in possession of the fact that he had been made a defendant in the foreclosure suit. In any event, ,the evidence offered by the defendants is not sufficient to overcome the official return of the sheriff. At most, it only shows that, instead of serving the summons upon J. W. Karnes personally, it was served upon him by leaving a copy at his usual place of abode with some person who was a member of his family, over fifteen years of age, as provided in the 3rd subdivision of § 1144 of Crawford & Moses’ Digest. It follows that the plaintiffs did not’show facts sufficient to overcome the return of the service of summons upon them in the foreclosure suit and the recital contained in the decree that they were duly served with summons; and they are therefore not entitled to set aside the foreclosure decree, regardless of the fact of whether or not they might have a meritorious defense to that action. It follows that the decree must be affirmed.