Spencer v. Small

Mr. Justice McCamant delivered the opinion of the court. 1. The only error assigned is the exclusion by the court of the summons and the return thereon in the case of Small and Urie against Spencer. The return was as follows: “State of Oregon, County of Tillamook,—ss. “I hereby certify that I served the within Summons within said State and County on the 23d day of December, 1915, on the within named defendant H. B. Spencer, by delivering a copy thereof prepared and certified to by me as deputy Sheriff, together with a copy of the complaint prepared and certified to by - to -personally and in person. “H. Crenshaw, “By J. L. Burke, Deputy.” [664] Section 2420, L. O. L., is as follows: “The summons shall be served by delivering a copy thereof, together with a copy of the complaint, certified to be correct by the plaintiff, his agent or attorney or the. justice, to the defendant in the manner provided for in the Code of Civil Procedure for the service of summons in actions in courts of record. The summons shall be returned to the justice by whom it was issued by the officer serving it, with the proof of such service, or that the defendant cannot be found.” In holding this return insufficient to support a judgment, the Circuit Court followed Belfils v. Flint, 15 Or. 158, 161 (14 Pac. 295). In this case Mr. Chief Justice Lord said: “The return on the summons does not show that a copy of the complaint certified by the justice of the peace before whom the cause was pending, or certified to by the plaintiff, his agent or attorney, was served on the defendant. This is a statutory- requirement which must be observed before jurisdiction can be assumed or conferred. Whether it has been complied with or not, we must look to the return of the officer upon whom is imposed this duty. As the return of that officer does not show that a copy of the complaint, certified as required, was served, the service is insufficient to warrant a judgment by default against the defendant. ’ ’ The statute in force at the time the above case was decided provided that in actions in courts of record service should be made as follows: 11 The summons shall be served by delivering a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk ”:.Deady and Lane Code, p. 115, § 54. The above provision was made applicable to actions in Justice’s Courts by Section 7 of the statute govern [665] ing procedure in these courts, found on page 463 of the Code. It will be noted that the statute under which Belfils v. Flint was decided is substantially identical with Section 2420, L. O. L. Belfils v. Flint has never been overruled. It is cited with approval in Lane v. Ball, 83 Or. 404, 415 (160 Pac. 144, 163 Pac. 975). In the case at bar the return fails to show the service on Spencer of a copy of the complaint certified to be correct by the plaintiff, his agent or attorney or by the justice of the peace. This case is therefore not to be distinguished from Belfils v. Flint. Defendants cite Moore Realty Co. v. Carr, 61 Or. 34, 39 (120 Pac. 742), and Stadelman v. Miner, 83 Or. 348 (155 Pac. 708; 163 Pac. 585, 983). These cases are instructive as to the principles which should be applied when a judicial record is collaterally attacked, but neither of them involved the sufficiency of a sheriff’s return on a summons. These authorities do not modify the rule announced in Belfils v. Flint. It follows that the judgment should be affirmed, and it is so ordered. Affirmed.