Jones v. Hopkins

ITANEY, J. This appeal is from an order vacating a default judgment, on the ground that the summons was not in fact served upon the defendant. The judgment roll discloses a summons, dated April 9, 1908, a complaint, verified before Ira O. Curtiss, then attorney for the plaintiff, on the same day, an affidavit of service, subscribed and sworn to before Mr. Curtiss May 1, 1909, stating that the summons and complaint came into the hands of Parker IT. Lyons, a citizen of this state, over 21 years of age, and not a party to or [619] in any manner interested in the cause of action, on April 9, 1908, and that the same were' served at Aberdeen on May 12, 1908, by the delivery of true copies to the defendant, an affidavit of default, in usual form, made by plaintiff’s attorney, September 21, 1909, stating that the -summons and complaint were served May 12, 1908, and a judgment in favor of the plaintiff for $656, and costs, signed by the circuit judge September 22, 1909, filed attested, and docketed February 14, 1910. If the circuit court erred in overruling plaintiff’s objection to the portions of the defendant’s rebuttal affidavit relating to his expense account as state hotel inspector, it was error without prejudice. The entire evidence, independently of such portions, clearly justifies the conclusion that the defendant was not in Aberdeen from 6:35 a. m. May 12 untl May 14, 1908. 1908. [1] If plaintiff’s witnesses, relying on personal recollection or data aliunde the record, were insisting that the service was made May 12, 1908, if the evidence compelled the conclusion that it was made on that particular day, or not at all, convincing evidence of defendant’s absence from Aberdeen on that date would justify the decision of the learned circuit court; but that was not the issue presented -by -the motion to vacate. The burden was upon the defendant to prove by clear and -satisfactory evidence that the summons and complaint were not delivered to him at any time. Matchett v. Liebig, 20 S. D. 169, 105 N. W. 170. The fact that the summons was not served on -the day stated in the return is a circumstance to be considered in determining whether it was ever served; but such 'fact alone would not justify the order of the circuit court. [2] As to the real issue — whether the summons and complaint were delivered to the defendant — the only persons in position to testify from personal knowledge directly contradict each other. Lyons states in his affidavit that he -distinctly recollects meeting -the defendant, with whom he was personally acquainted, on the street coming from the post office, in Aberdeen; that he then and here handed the summons and complaint to the defendant; and that the defendant took the papers, looked at them, [620] and remarked that he would “fight it.” The defendant positively denies that any such transaction ever occurred anywhere. Evidently one or the other is mistaken, or has sworn falsely. Though it appears that Lyons was in the employ of the plaintiff’s attorney, the record discloses no special interest in the plaintiff or hostility to the defendant. It is difficult to understand how he could be mistaken. If he did not serve the summons, and knew he had not done so- when he made the return of service, he not only committed perjury and a fraud upon the court, but did the defendant a grievoüs wrong. No one should be presumed guilty of such reprehensible conduct, in absence of convincing proof of his guilt. In view -o-f defendant’s interest, the evidence of these two witnesses certainly does not justify the decision of the trial court. [3] The record contains two affidavits by the defendant’s attorney, one served with the notice of motion, the -other read in rebuttal. Both relate to a conversation with Lyons on July 19, 1911. In the first, affiant states that Lyon-s told him the summons and -complaint were -served “ait the post office in the city of Aberdeen.” In the second, ’that Lyons told him -they were served “in the postoffice building in the city of Aberdeen.” In the first, he swears Lyons stated the service was made, “according to his best recollection, not to exceed one -week before the day -on. which he swore to the affidavit before Ira O. Curtiss.” In the second, he states: “Affiant asked him if it was six months after the date of service before he swore to the affidavit, and the said Lyons stated positively that it was not; that it was a good deal shorter ■time than that.” This testimony, taken in connection with that of Lyons touching the same subject, adds nothing- to the probative force -of the defendant’s evidence. Defendant’s wife states, in effect, that, though she and her husband discussed business matters, she received no intimation of any proceedings having been commenced until July 13, 1911, when informed by her husband’s attorney that a judgment had been rendered in this action. This was the same day the defendant first heard of the judgment, according to his testimony. Lyons -and the plaintiff both testified ■that the defendant stated, in the presence of Ira O. Curtiss, that [621] he had allowed his time for answering to expire. Though its weight is impaired by the plaintiff’s interest, the failure of Mr. Curtiss to mention the conversation in his affidavit and the defendant’s denial, the evidence concerning this alleged conversation certainly cannot be regarded as tending to prove that the summons was not served. Mr. Curtiss states that some time in the latter part of the spring or early summer of 1908 he handed the summons and complaint to Lyons for service, and that later on the same day Lyons returned the same to him, reporting that they had been served. The affidavit of service states that the summons, which bears date of April 9, 1908, came into Lyons’ hands on the same day, and that it was served May 12, 1908. It was not sworn to until May 1, 1909. As has been shown, it clearly appears from the defendant’s testimony, independently of the portions to which objection was 'interposed, that the affidavit of service does not speak the truth with respect to the date of service; and, if Mr. Curtiss is correct, it does not speak the truth as to the date it was received by' Lyons for service. The affidavit of default was not made until September 21, 1909. The judgment was not filed and docketed until February 14, 1910. The reasons assigned for this long delay in preparing the judgment roll are apperent inability to collect and possibility of settling the claim; sufficient reasons, perhaps, for delaying to file the judgment, but little, if any, excuse for failing to make return on the summons for almost c-ne year after it must have been served, if served at all. So we have the uncorroborated, positive testimony of the defendant that the summons was not served, opposed by the positive testimony of Lyons, based upon personal. recollection that it was served, impaired by the (fact that his affidavit of service, made nearly a year after the transaction to which it relates transpired, is clearly erroneous as to the date of service, and probably erroneous as to the date when the papers came into his hands for -service. While these errors in the affidavit of service and the long delay in making the affidavit show inexcusable negligence, -they do not justify the conclusion that Lyons and plaintiff’s attorney conspired to deceive the court and defraud the • defendant. This feature elimin [622] ated, the direct conflict between Lyons and the defendant remains. Neither gave oral testimony or was subjected to cross-examination in the circuit court. The motion to vacate was not addressed to the. discretion of the trial judge. Matchett v. Liebig, supra. He was in no better position than are the judges of this court to ascertain the truth. Hence the conclusion of this .court must, be based on the judgment roll and affidavits as they appear in the record on this appeal, .uninfluenced by the decision of the trial court or personal, knowledge of the parties or witnesses. [4] The issue is one which should have been presented by an action in equity, with its opportunities for cross-examination, impeachment, and other efficient means of testing the credibility of witnesses; but it wais not so presented, and, because this' court, upon the entire record before it, is unable to. determine whether or, not the summons was in fact served, the order appealed from must be reversed.