Crotteau v. Irvine

656 P.2d 1162
CourtWyoming Supreme Court
DecidedJanuary 11, 1983
DocketNo. 5735
StatusPublished

This text of 656 P.2d 1162 (Crotteau v. Irvine) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crotteau v. Irvine, 656 P.2d 1162 (Wyo. 1983).

Opinion

BROWN, Justice.

Appellee Irvine filed a complaint in district court on January 28, 1982, against numerous defendants, one of whom was appellant, R.F. Crotteau. The sheriff of Natrona County made service on appellant by leaving a copy of the summons and complaint with Lawrence Burzynski, at 3521 East 24th, Casper, Wyoming. A default judgment against appellant was entered on March 26, 1982. Appellant filed a motion to set aside the default judgment, alleging that she had not been properly served with process. After hearing, the district court entered an order denying the motion to set aside default judgment. Appellant has appealed from that order.

We affirm.

Rule 4(d)(1), Wyoming Rules of Civil Procedure provides:

“(d) Personal service. — The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
“(1) Upon an individual other than an infant under 14 years of age or an incompetent person, by delivery of a copy of the summons and of the complaint to him personally, or by leaving copies thereof at his dwelling house or usual place of abode with some member of his family or person in his employ over the age of 14 years, or at the defendant’s usual place of business with any employee then in charge of such place of business, or by delivery thereof to an agent authorized by appointment or by law to receive service of process.”

The sheriff’s return of process stated that he served a copy of the summons and complaint by delivering a copy of them on February 19, 1982,

“ * * * to R.F. Crotteau by leaving a copy with Lawrence Burzinski, [sic] at 3521 East 24th, Casper, Wyoming, personally and in person, a person over the age of 14 years, residing at 3521 East 24th, Casper, Natrona County, Wyoming at 9:05 p.m.”

Appellant was not present at the hearing on the motion to set aside the default judgment. Instead, she relied on her affidavit attached to the motion. The affidavit stated that she was a defendant over the age of fourteen years and competent on February 19, 1982, and that the complaint was not delivered to her personally. The affidavit also stated:

“5. That a copy of the complaint was not left at my house or usual place of abode with some member of my family or person in my employ over the age of 14 years.
“6. That a copy of the complaint was not left at my usual place of business or delivered to an agent authorized by appointment or by law to receive service of process.
“7. That I did not live at or reside in the residence at 3521 East 24th, Casper, Wyoming on February 19, 1982.
“8. That Lawrence Burzynski has never been appointed by me or my agent for accepting service of process.”

[1164]*1164Rule 4(d)(1), W.R.C.P., is similar to Rule 4(d)(1), Federal Rules of Civil Procedure. Under the federal cases, the burden of proof to establish the validity of the service is on the party on whose behalf the service is accomplished. See 4 Wright and Miller, Federal Practice and Procedure, § 1083, p. 384 (1969), and cases cited therein. Normally, however, the process server's return will provide a prima facie case as to the facts of service, and the burden shifts to the defendant to rebut the proof. San Rafael Compania Naviera, S.A. v. American Smelting & Refining Company, 327 F.2d 581 (9th Cir.1964). The defendant has to overcome the proof by strong and convincing evidence. Hicklin v. Edwards, 226 F.2d 410 (8th Cir.1955).

The law in state courts appears to be mostly in accord. In some states, courts have interpreted the service of process rules to mean that compliance with the prescribed procedure establishes a presumption of validity. See Caudle v. Ellison, Ala., 401 So.2d 38 (1981); and Trammel v. National Bank of Georgia, 159 Ga.App. 850, 285 S.E.2d 590 (1981). Other courts have held the same, although this court could not discern whether a rule actually established the presumption, or whether the appellate courts had interpreted a rule of procedure or a statute to establish the presumption. See: Plonski v. Halloran, 36 Conn.Super. 335, 420 A.2d 117 (1980); Tropic Builders, Ltd. v. Naval Ammunition Depot Lualualei Quarters, Inc., 48 Haw. 306, 402 P.2d 440 (1965); Wilson v. Upton, Okl., 373 P.2d 229 (1962).

Other states have held or have rules which say that the presumption of service which normally arises does not arise when an individual defendant is not served in person, or where a direct attack is made on a default judgment. People v. Mickow, 58 Ill.App.3d 780, 16 Ill.Dec. 306, 374 N.E.2d 1081 (1978); and Gerland’s Food Fair, Inc. v. Hare, Tex.Civ.App., 611 S.W.2d 113 (1980). Yet other courts have held that although a presumption is rebuttable, the uncorroborated testimony of a defendant alone is not sufficient to impeach the return. Goldfarb v. Roeger, 54 N.J.Super. 85, 148 A.2d 189 (1959); and Ashe v. Spears, 263 Md. 622, 284 A.2d 207 (1971), cert. denied, 406 U.S. 958, 92 S.Ct. 2061, 32 L.Ed.2d 344 (1972). A minority of states hold that a sheriff’s return is conclusive and cannot be attacked extrinsically absent a showing of fraud. This rule finds its basis in the presumption that the sheriff properly executes those duties authorized by law. See Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977).

This court has not ruled upon any presumption concerning the sheriff’s return. It has ruled that the trial court may take evidence to supplement the return of service when the return filed with the court is insufficient to show proper service. L.C. Jones Trucking Co. v. Superior Oil Co., 68 Wyo. 384, 234 P.2d 802 (1951). In that case, a Mr. Shaw was one of the defendants. The return stated that the sheriff had delivered the summons at defendant’s usual place of residence by leaving it with Mrs. Shaw, a party over the age of 16. This court held that where the return of service showed the service was defective, the trial court could find as a matter of fact that service was made upon the defendant by serving a member of the defendant’s family at his usual place of abode.

In Bryant v. Wybro Federal Credit Union, Wyo., 544 P.2d 1010

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Goldfarb v. Roeger
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Griffith v. United States
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656 P.2d 1162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crotteau-v-irvine-wyo-1983.