A. and B. who were husband and wife, was returned and indorsed: "Service made by leaving at each of the above named defendants usual place of residence a certified copy of the within summons." This was held a good service upon each of the defendants.39 And where the service is personal service by the sheriff or his deputy, of the original writ of summons upon a defendant, and the proper return thereof made by such officer on a duplicate writ issued by the clerk of the court, this, it has been held, was a substantial compliance with the statute.40 Under the statute, it is not service of summons to leave it at defendant's usual place of business," nor is it good service where the sheriff in a case where the summons was issued against three defendants, makes his return in these words: "Served by leaving a copy of this writ at the residence of the within named defendant," nor is it good service against all of the defendants, or against either of them, or any of them.42 Nor will the service be sufficient where the sheriff's return does not state that he gave the defendant a copy of the indorsements on the summons; 43 nor can the defendant be served by leaving a copy at his store.** In the note below will be found a copy of the Ohio statute, under which the foregoing decisions were rendered." 39 Elliot v. Platter, 43 0. S. 198. 40 Ohio Gen. Code, Secs. 11,285 and 11,286. 41 Lambert v. Sample, 25 O. S. 336. 42 Gamble v. Warner, 16 Ohio, 371. 43 Bronton v. Allston, 4 W. L. M. 588. 44 Hays v. Bank, W. 563. 45 "Service is made by delivering, at any time before the return day, a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence, or, if the defendant is a partnership, sued by its company's name, by leaving a copy at its usual place of doing business, or with any member of such partnership; and the return must be made at the time mentioned in the writ, and the time and manner of service shall be stated on the writ." The statutes of Kansas and Nebraska are not identical with the statute of this State, and we, therefore, do not cite any decided cases from these States. Sec. 42. Return must state what. In all cases the return must state the time and manner 46 of service; and the officer, to whom the summons is directed, must return the same at the time therein stated.*7 Sec. 43. Does the return of the sheriff import absolute verity? The return of the sheriff as to all matters of which he has personal knowledge is conclusive between the parties, and cannot be questioned in an action afterwards brought to enjoin the enforcement of a judgment based on such service on the ground that the court was without jurisdiction of the person of the defendants. 48 The proposition above set forth was promulgated by the Supreme Court of Kansas, with some hesitancy, but in a well considered case, the rule was adopted by that court. We here quote from the opinion of the court and the review of the decided cases on the proposition: "But the real question in the case is whether there may be any contradiction of the return outside of the record itself. In England it has been the established law from a very early day that the return is conclusive as between the parties, and that the remedy of a party injured by a false return is by an action against the sheriff on his official bond; in which case alone the truth or falsity of the return may be inquired into.50 In this country there is much diversity of judicial opinion on the subject, but the decided weight of authority seems to support the position that as to matters falling within the personal knowledge of the sheriff, his return is conclusive as between the parties to the record unless the falsity of the return is disclosed by some other portion of the record 46 Snyder, 5,061; Wilson, 4,265; Kansas, 4,495 (1901), identical; Nebraska, 1,071 (1907), identical. 47 Snyder, 5,602; Wilson, 4,266. 48 Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1,055; see, also, McNeal v. Eddy, 24 Kan. 109. 49 Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1,055. 50 19 Vin. Abr. 210, 6 Com. Dig. of the case.51 These cases hold that the return of the officer is conclusive on the question of jurisdiction. It is not necessary now to inquire how far the court may go in setting aside a service when challenged in the suit in which it is made before judgment. In this case the only ground on which the judgment of the trial court can be maintained is that the court was without jurisdiction to render the judgment in the prior action. The following cases seem to support the doctrine that a want of jurisdiction may be shown at any time, and that the return of the sheriff is only prima facie evidence of the facts stated.52 The courts of Georgia and New York, while recognizing the existence of the general rule, hold that under the practice prevailing in those States the officer's return is not conclusive.53 It was said in the opinion in the last mentioned case: "The learned annotators of Smith's Leading Cases, Hare and Wallace, sum the matter up by saying: 'Whatever the rule may be where the record is silent, it would seem clearly and conclusively established by a weight of authority too great for opposition, unless on the ground of local and peculiar law, that no one can contradict that which the record actually avers, and that a recital of notice or appearance, or a return of service by the sheriff in the record of a domestic court of general jurisdiction, is absolutely conclusive, and cannot be disproved by extrinsic evidence.' It is quite remarkable, however, that, notwithstanding the formidable array of authority in its favor, the courts of this State have never sustained this doctrine by any 51 Hunter v. Stoneburner, 92 Ill. 75; Cully v. Shirk, 30 N. E. (Ind.) 882; Stewart v. Griswold, 134 Mass. 391; Green v. Kindy, 43 Mich. 279, 5 N. W. 297; Tullis v. Brawley, 3 Minn. 277 (Gil. 191); Stewart v. Stringer, 41 Mo. 40; Volles V. Bowen, 45 N. H. 124; Barrows v. Rubber, 13 R. I. 48; Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908; Bank v. Downers, 29 Vt. 332; Stewart v. 54 Stewart, 27 W. Va. 167; 22 Am. & 52 Dunklin v. Wilson, 64 Ala. 162; Watson v. Watson, 6 Conn. 334; Quarles v. Hiern, 70 Miss. 891, 14 So. 23; Pollard v. Wegener, 13 Wis. 569. 53 Dozier v. Lamb, 59 Ga. 461; Ferguson v. Crawford, 70 N. Y. 253. 541 Smith Lead. Cases, 842. adjudication, but, on the contrary, the great weight of judicial opinion, and the views of some of our most distinguished jurists, are directly opposed to it." In the note below will be found the cases cited as supporting the proposition that the sheriff's return may be disputed; even in regard to personal service.55 56 Much In the cases heretofore decided by this court the right to controvert the sheriff's return has been expressly limited to matters not coming within his personal knowledge, and the opinions in all the cases, recognize this distinction. We do not approve the rule declared in the opinion in the case of Jones v. Marshall that a sheriff's return may be controverted as to matters falling within his personal knowledge. can be said by way of argument for and against the rule which makes the sheriff's return conclusive. We deem it the safer course to yield our assent to a rule which has met with the approbation of so large a majority of the courts, and incline to the opinion that the weight of reason rests with that of authority. This case fairly illustrates the dangers and difficulties arising if the opposite rule is followed. Where there is a return of personal service, ordinarily the person served will be the only witness who can flatly contradict it, unless the officer himself, does so. The service on John J. Harbour was entirely regular, and a summons was left at the residence of Frances J. Harbour, if not in fact handed to her in person, as testified by Brown. To set aside and annul a judgment duly entered on such slight proof of what can hardly be termed more than a technical defect in the service, is certainly establishing a bad precedent, and, in our view, a much more dangerous one than the rigid rule which we deem best to follow in this case. Under all the authorities, the proof required to controvert a sheriff's return must be clear and convincing. But, if we were to permit 55 Bond v. Wilson, 8 Kan. 228; Starkweather v. Morgan, 15 Kan. 274; Chambers v. Manufactory, 16 Kan. 270; McNeill v. Edie, 24 Kan. 108; Jones v. Marshall, 43 Pac. 840. 56 Including Mastin v. Gray, 19 Kan. 458. an inquiry into its truth, we should be met in every case brought to this court, by the other rule that the decision of the trial court on a disputed question of fact is final. We should then rest under the necessity of affirming judgments, like the one now under consideration, or of weighing conflicting testimony. The hardships which may possibly result from the rule adopted are not so great nor so probable as might at first appear, when it is considered that the sheriff acts under oath, and is responsible on his official bond. If he makes a mistake, the court to which the process is returned may permit him to amend. The proceedings of our district courts are matters of general notoriety. Judgments are not entered here, as in New York, by the clerk in vacation, but must always be taken in open court. In giving conclusiveness to a sheriff's return as to those matters coming within his personal knowledge, we do no more than give it the same credit as the parts of the record written by the clerk, any of which may be corrected under the direction of the court when application is duly made, but cannot be contradicted by parol testimony." 57 However, there is no doubt that an improper return of the officer, when it does not speak the truth, can always be corrected by the court, if the proper party by proper proceeding, within time, seeks to correct it. But the correction will not be made if the evidence is not clear and convincing. The sheriff's return carries with it every legal presumption.58 Sec. 44. The officer's return may be corrected by amendment. If application be made to correct the officer's return of summons in proper time, and in a proper case, evidence may 57 By the court in Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1,055. 58 Starkweather v. Morgan, 15 Kan. 274; Kirkwood v. Reedy, 10 Kan. 453; Bond v. Wilson, 8 Kan. 231; Dutton v. Hobson, 7 Kan. 196; Ingraham v. McGraw, 3 Kan. 521. An official return of the manner of service of summons in an action duly made by a sworn officer, is, between parties and privies, and to others, whose rights are necessarily dependent, conclusive as to the facts stated therein, until vacated or set aside by a judgment of the courts of law. Phillips v. Ellwell, 14 O. S. 240; Guinn on Sheriffs, 473. |