Jordan v. . McKenzie

CoNNOR, J. Where it appears on tbe record, as in tbe instant case, tbat tbe summons in an action was duly served, and tbe defendant alleges tbat in truth and in fact tbe summons was not served, as appears by tbe return thereon, and on this ground tbe defendant prays tbat a judgment by default be set aside and vacated, bis remedy is by a motion in tbe cause, and not by an independent action; it is otherwise, where it appears on the record tbat no summons was ever served on tbe defendant. In tbe latter case tbe judgment is subject to collateral attack, whereas in tbe former case tbe attack must be direct, and made by motion in tbe action in which tbe judgment was rendered. This principle is stated by Walker, J., in Stocks v. Stocks, 179 N. C., 285, 102 S. E., 306, and is approved as stated by Allen, J., in Caviness v. Hunt, 180 N. C., 384, 104 S. E., 763. Tbe return of a sheriff or other officer to whom a summons was directed for service, showing tbat the summons bas been duly served on tbe defendant, while prima facie sufficient to show tbat tbe summons bas been served, is not conclusive. Tbe contrary may be shown by evidence wbicb is clear and unequivocal. Long v. Town of Rockingham, 187 N. C., 199, 121 S. E., 461. In tbe instant case, it does not appear from tbe judgment tbat tbe judge bas found tbe facts involved in tbe contention of appellant tbat tbe summons was not in truth and in fact served on defendant, or tbat the judge bas passed upon or decided tbe question of law involved in tbe contention tbat upon tbe cause of action alleged in tbe complaint, plaintiff was not entitled, in any event, to judgment by default final. Tbe action is therefore remanded, with direction tbat tbe judge find *753 the facts from the evidence and set them out in his judgment, and if he shall find that the summons was in truth and in fact duly served on the defendant, as appears by the return thereon, with direction that he pass upon and decide the question involved in the motion, whether on the allegations of the complaint, the plaintiff was entitled to judgment by default final. It is so ordered. Eemanded.