Sexton v. Rock Island Lumber & Manufacturing Co.

49 Kan. 153

• Court: Supreme Court of Kansas
• Decided: January 15, 1892
• Status: Published

Opinion

Opinion by

Stbang, C.:

February 28,1888, the Rock Island Lumber and Manufacturing Company obtained judgment for $565.83, against the plaintiff, Jane T. Sexton, and also a foreclosure of a mechanic’s lien. Afterward two motions were filed by the plaintiff to set aside and vacate said judgment. Upon both of these motions evidence and arguments of counsel were heard, after which they were overruled. On the 15th of May following, the plaintiff filed her petition in the court to vacate and modify said judgment, and at the same time procured a restraining order to issue, enjoining said company, its agents and servants, and the sheriff of the county, to refrain from selling the plaintiff’s property on said judgment. The defendant filed a motion to dissolve the restraining order, and the plaintiff a motion for a temporary injunction. These motions were heard at the same time. The motion to dissolve was overruled, and the temporary injunction was allowed. Afterward the injunction proceeding was heard on its merits and dissolved, and from such judgment of the court the plaintiff comes here for error. In the case of the Rock Island Lumber and Manufacturing Company against Jane T. Sexton and others, for the recovery of a judgment for the lumber sold by said company that went into the house of said Jane T. Sexton, and for a foreclosure of a mechanic’s lien against said house, the sheriff’s return of service on the summons, so far as it relates to the plaintiff in error, is as follows:

“Received this writ this 4th day of November, 1887, at 1 o’clock p.m., and, as commanded by the writ, I summoned the within-named Jane T. Sexton by leaving a certified copy of the within summons and the indorsements thereon at the usual place of residence on the 5th day of November, 1887.”

Jane T. Sexton made no appearance in answer to said summons, and judgment was taken against her by default February 28, 1888. March 7, 1888, the plaintiff in error filed a motion to set aside and vacate the judgment so rendered as aforesaid, for the reason that the return of the sheriff does not show that the service of the summons in the case was ever had on Jane T. Sexton. That motion was heard and by the court overruled. Was such return of service sufficient? It was not as complete as it might have been, but was it a substantial compliance with the statute? The sheriff in his return says: “ I summoned the within-named Jane T. Sexton by leaving a certified copy of the within summons and the indorsements thereon at the usual place of residence.” If the sheriff had said her usual place of residence, the return would have been complete. What does this return of the officer import? It conveys the idea at least that the copy of the summons was left at the usual residence of some person. Whose residence? At whose residence is a copy of the summons to be left, when it is served by leaving a copy at the usual place of residence? At the residence of the party to be summoned. Jane T. Sexton was the party to be summoned in this case, and the sheriff says, in his return, “ I summoned the within-named Jane T. Sexton.” We think the fact that the return declares that the proper person, Jane T. Sexton, was served, taken in connection with the allegation that the copy was left at “the usual place of residence,” sufficiently indicates that the copy of the summons was left at the usual place of residence of Jane T. Sexton.

The service of summons being held good, it gave the court jurisdiction of the person of the defendant therein named. It was her duty then to have answered the petition in the case, and appeared and contested the trial thereof. Not having filed any answer, and having made no appearance at the trial to set aside the service of the summons, nor for any other purpose, she could not afterwards be heard to complain of any errors committed on the trial of the cause. The presumptions are in favor of the record. It was her duty to have been in court at the trial of the case, to challenge any error in the admission of evidence, and save her exceptions to the ruling therein. If the court had had no jurisdiction of the defendant at the trial of the case, the judgment rendered might have been set aside, subsequently, on motion. But the court below held that it had jurisdiction, obtained by service of summons on the defendant, and in that we think the court was right. Admitting that the defendant was served, the record shows no excuse for a failure to answer, since she did not appear and file a motion to set aside the service of the summons.

We do not think there is anything in the record to show any fraud in procuring the judgment; nor do we think the record shows any perjury in the case. A witness may be mistaken on some point of his evidence in a case, and yet not be guilty of perjury. Robinson may have been mistaken in relation to what paper he served on the plaintiff in error, but it is apparent from the record that it was simply a mistake, and could not amount to perjury.

We think the court was right in refusing to set aside the judgment. It is therefore recommended that the judgment of the district court be affirmed.

By the Court: It is so ordered.

All the Justices concurring.