Nickerson v. Nickerson

87 N.E.2d 915, 85 Ohio App. 372, 54 Ohio Law. Abs. 445, 40 Ohio Op. 241, 1949 Ohio App. LEXIS 707

Opinions

OPINION

By WISEMAN, J.

This is an appeal on law from an order of the Common Pleas Court of Montgomery County, Ohio, overruling a motion to vacate a default judgment rendered in a partition suit. Several grounds of error are assigned.

The principal question raised is whether the defendant-appellant had been served with summons in the action. A period of eighteen months elapsed from the time the action was filed until the property was sold. After sale and confirmation thereof, the appellant filed his motion to vacate the judgment.

There was a clear conflict in the testimony. The appellant contends that the summons had not been served upon him. The return of service shows that he was served personally. When the return is regular on its face there is a presumption in favor of valid service. 32 O. Jur. Section 94, page 483. This presumption must stand until overcome by proof showing the contrary.

The deputy sheriff, who made the service, testified that he knew the appellant and served the appellant personally on the date stated in the return. Whether the deputy making the service had actually signed the return on the day service was made or on a later date is immaterial in view of the provisions of §11363 GC which authorizes the court to amend any process or correct a mistake in the return, before or after judgment, in the furtherance of justice. See, Paulin v. Sparrow, 91 Oh St 279, 287.

In determining whether the appellant had been legally served with summons the trial court was the sole judge of the credibility of the witnesses and the weight to be attached to their testimony. It was within the province of the trial court to believe the evidence presented by the appellee and disbelieve the evidence presented by the appellant. The trial court found that personal service had been made on the appellant. The several orders made by the court, of which appellant complains, conform to such finding. This court can not find from the record that the judgment is not properly supported by the evidence. Finding no error in the record prejudicial to the rights of the appellant the judgment is affirmed.

MILLER, PJ, and HORNBECK, J, concur.