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

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. Much 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.

be given to impeach it, and when it is shown not to speak the truth, it may be amended so as to require it to speak the truth." 59

Sec. 45. When acknowledgment of service equivalent to service of summons.

The statute provides that acknowledgment on the back of the summons, or the voluntary appearance of the defendant, is equivalent to service.60

The usual form for the entry of appearance is the filing of a separate paper in the case, wherein the defendant says that he waives the issuing and service of summons upon him, and voluntarily enters his appearance in the action.

In addition to the above methods of entering appearance in the case, appearance may be entered by filing a motion or demurrer, or even by the making of an oral application in the case to the court. Our courts hold that if the defendant desires to object to the insufficiency of service of summons, or other jurisdictional defects in the process by which the court acquires jurisdiction over his person, he should do so by motion, and in his motion, or motions, declare that he appears for the purpose of the motion only, not intending in any manner to enter his appearance therein, and protest against the jurisdiction of the court, and ask that the pretended service of summons, as to him, be quashed and set aside. The cases on the subject are too numerous to discuss, and a list thereof will be found in the note below.61

59 Repp v. Kyle, 26 Kan. 89; Starkweather v. Morgan, 15 Kan. 274; Kirkwood v. Reedy, 10 Kan. 453; Bond v. Wilson, 8 Kan. 231; Dutton v. Hobson, 7 Kan. 196.

60 Snyder, 5,603; Wilson, 4,267; Kansas, 4,497 (1901), identical; Nebraska, 1,073 (1907), identical; Ohio Gen. Code, Sec. 11,287 (1910), identical.

61 Godfred v. Godfred, 30 O. S. 53; Brundige v. Beggs, 25 O. S.

652; Watson v. Paine, 25 O. S. 340; Maholm v. Marshall, 29 O. S. 611; Fee v. Big, etc., 13 0. S. 563; Evans v. Illes, 7 O. S. 233; O'Neal v. Blessing, 34 O. S. 34; Kinkead's Practice, Sec. 160; Tallman V. Baltimore, 45 Fed. Rep. 156; Whitehead v. Post, 3 W. L. M. (Ohio), 195; White v. Friese. 2 C. S. C. R. 30; Mawwick v. Wolf, 3 W. L. B. 458; Allen v. Miller, 11 O. S. 374.

be a party; and that said action may be brought in any county in which the cause of action arose, as now provided by law "was transacted," and service upon such agent will be taken and held as due service upon said corporation, such certificate must also state the principal place of business of such corporation in this State, with the address of the resident agent. A duly authenticated copy of the appointment and commission of such agent must be filed and recorded in the office of the secretary of State, for which a fee (therefor) of one dollar must be paid to the secretary, and a like fee of one dollar for each subsequent appointment of any agent so filed.

A certified copy of the appointment of such agent under the hand and seal of the secretary of State, will be sufficient evidence of the appointment of such agent in any court. The secretary of State is required to prepare a list for distribution, giving the names of all corporations, with the name of their agent, showing the address of the agent by street and number, and must include the same in his biennial report to the governor.68

Sec. 49. When no resident agent designated service of summons upon foreign corporation may be upon secretary of State.

It is provided upon this subject by statute, that in all cases where a cause of action accrues to resident or citizen of the State of Oklahoma, by reason of any contract with a foreign corporation, or where any liability on the part of a foreign corporation accrues in favor of any citizen or resident of this State, whether in tort or otherwise, and such foreign corporation has not designated an agent in this State upon whom process may be served, or has not an officer continuously residing in this State, upon whom summons or other process may be served so as to authorize a personal judgment, service of summons or any other process may be had

68 Snyder, 1,540; Act of March 22, 1909.

upon the secretary of State, and such service will be sufficient to give jurisdiction of the person to any court in this State having jurisdiction of the subject-matter whether sitting in the county where the secretary of State is served or elsewhere in the State.

The statute provides that it will not be effective in cases where its enforcement might conflict with the powers of Congress on the Federal laws to regulate commerce between the States."9

Sec. 50. Summons on railroad and stage company-Designated agent.

Every railroad company or corporation, and every stage company doing business in the State of Oklahoma, or having an agent doing business therein for such corporation or company, is hereby required to designate some person residing in each county, into which its railroad line or stage route may or does run, or in which its business is transacted, upon whom all process and notices issued by any court of record or justices of the peace of such county may be served.T0

Sec. 51. Summons-Certificate of appointment of designated

agent.

In every case such railroad company or corporation, and stage company, shall file a certificate of the appointment and designation of such person, in the office of the clerk of the district court of the county in which such person resides; and the service of any process upon the person so designated in any civil action, shall be deemed and held to be as effectual and complete as if service of such process were made upon

69 Snyder, 1,542; Act of March 22, 1909.

70 Snyder, 5,605; Wilson, 4,269; Kansas, 4,449 (1901), identical. As to service of notice to take depositions on railroad company,

see Atchison v. Sage, 49 Kan. 524, 31 Pac. 140; Kansas v. Thatcher, 17 Kan. 92. Where action may be brought, see Hannibal v. Kanallay, 39 Kan. 1, 17 Pac. 324.