Settlemier v. Sullivan
97 U.S. 444

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U.S. Supreme Court

Settlemier v. Sullivan, 97 U.S. 444 (1878)

Settlemier v. Sullivan

97 U.S. 444

Syllabus

In ejectment for lands in Oregon, the defendant claimed title under a sheriff's deed, pursuant to a sale of them under execution sued out upon a judgment by default rendered in 1861 against A. in the state court. A certified transcript of the judgment record, consisting, as required by the statute, of a copy of the complaint and notice, with proof of service and a copy of the judgment, was put in evidence. The statute also required that in actions in personam, service should be made by the sheriff's delivering to the defendant personally, or, if he could not be found, to some white person of his family above the age of fourteen years, at his dwelling house or usual place of abode, a copy of the complaint and notice to answer. The suit against A. was for the recovery of money, and the sheriff's return showed that service was made "by delivering to the wife of A., a white woman over fourteen years of age, at the usual place of abode," a copy of the complaint and notice, but it contained no statement that A. could not be found. At the ensuing term, judgment was rendered against him with a recital that "the defendant, although duly served with process, came not, but made default."

Held:

1. That the court by such service acquired no jurisdiction over the person of A., and its judgment was void.

2. That such substituted service, if ever sufficient for the purposes of jurisdiction, can only be made where the condition upon which it

is permissible is shown to exist.

3. That the inability of the sheriff to find A. was not to be inferred, but to be affirmatively stated in his return.

4. That the said recital is not evidence of due service, but must be read in connection with that part of the record which sets forth, as prescribed by statute, the proof of service.

5. That such proof must prevail over the recital, as the latter, in the absence of an averment to the contrary, the record being complete, can only be considered as referring to the former.

This was an action for the possession of certain lands in the State of Oregon. The plaintiff asserted title to them under a patent of the United States issued in 1875, to one Durcharme and wife, a previous conveyance by them to one Magers, and a deed by the latter and wife in 1877.

The defendant claimed to have acquired the title to the premises by a sheriff's deed, made in 1862 on a sale of the property under execution upon a judgment recovered by one Walker against Magers in one of the courts of Oregon. The case turned upon the validity of this judgment. The demand in the complaint was for two hundred and fourteen acres of land, but the answer disclaimed title to portions of the

Page 97 U. S. 445

premises alleged to have been previously sold, and the recovery was had for the residue.

It appeared from the record that the judgment the validity of which was considered was rendered in September, 1861, in the Circuit Court of the County of Marion in favor of one Samuel Walker against Magers for something less than $200 in an action upon two promissory notes of the defendant, one for $100 and one for $50, each drawing interest at the rate of two percent a month. The complaint contained copies of the notes and prayed judgment for the amount with accruing interest. Endorsed upon it was a notice which, in the system of procedure then prevailing in the state, took the place of process, addressed to the defendant, stating that unless he appeared in the Circuit Court for the County of Marion on the third Monday of September then following and answered the complaint, it would be taken as confessed and its prayer be granted.

The complaint and notice were not served upon the defendant personally, but on the 2d of September, 1861, were served upon his wife by delivering copies to her "at the usual place of abode," she being, according to the certificate of the sheriff, "a white woman of over fourteen years of age." No statement is made by the officer that the defendant could not be found, nor is any reason given why personal service was not made upon him.

On the second day of the ensuing term, the 17th of September, judgment was rendered against the defendant for the amount due upon the notes as prayed. Its entry is preceded by a statement that on that day the plaintiff came by his attorneys, but that the "defendant, although duly served with process, came not, but made default." Upon this judgment execution was issued, and the property in controversy was sold.

In tracing his title through the sheriff's deed, the defendant produced a copy of the entry of the judgment mentioned without producing the complaint and notice and the sheriff's certificate of service. The omission was afterwards supplied by the plaintiff against the objection that the recital of service upon the defendant in the judgment could not be contradicted or impeached by the return of the sheriff, and that the entire judgment roll, and not detached portions of it, should be produced

Page 97 U. S. 446

in any attempt to contradict or impeach the recital. The plaintiff then produced a copy of the judgment similar to that already offered by the defendant. Those papers constituted under the statutes of the state in force at the time the judgment roll in the case -- that is, the official record of the proceedings, showing the nature of the action, the manner in which jurisdiction over the person of the defendant was acquired, and the character of the judgment. Those statutes provided that in cases of judgment by default, the judgment roll should consist of copies of the complaint and notice, with the proof of service and a copy of the judgment or decree. In cases of judgment after appearance, the notice and proof of service could be omitted from the roll, as the pleadings would be sufficient in such cases to show the jurisdiction of the court. But in cases of judgment by default, the proof of service of the complaint and notice was to constitute an essential portion of the record, and that proof, when furnished by the sheriff, could by the statute only consist of his official certificate, or that of one of his deputies, whose acts in that respect were in legal effect his. There was no suggestion at the trial that there were any other documents which could be regarded as part of the official record in the case, the objection taken being that detached portions were at different times introduced, and not the whole at once. The defendant relied upon the recital in the entry of the default preceding the judgment, and the object of his objection was to compel his adversary to put in evidence the same recital.

The documents constituting the official record of the action being introduced, the court instructed the jury that the judgment was void for want of jurisdiction in the court rendering it over the person of the defendant, and directed a verdict for the plaintiff. A verdict to that effect was accordingly rendered, and judgment entered thereon, to review which the present writ of error is brought. The instruction given to the jury constitutes the error alleged for a reversal of the judgment.

The statute of Oregon in force when service of summons was made in the action of Walker v. Magers reads as follows, substituting copy of complaint and notice for summons:

"The summons shall be served by delivering a copy thereof, together

Page 97 U. S. 447

with a copy of the complaint prepared by the plaintiff, his agent, or attorney, as follows: . . . In all other cases to the defendant, or, if he be not found, to some white person of the family above the age of fourteen years, at the dwelling house or usual place of abode of the defendant."

Statutes of Oregon, 1855, p. 86, sec. 29.

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