Hakes v. Shupe , 27 Iowa 465 ( 1869 )

Cole, J.

x. service and fective return, The return of service in this case stated all that the statute requires, except the time of service, Our statute says, “Eev. Sec. 2817: If served personally, the return must state the time and manner and place of making the service, and that a copy was -delivered to defendant, or offered to be delivered, etc. * * * ”

This return then was defective in that it failed to state one of the three facts which the statute says it “ must state,” to wit: the time of service. This court has heretofore held that “the only safe rule in cases where jurisdiction depends upon the process is to require a strict observance of the statute.” Farris v. Powell et al., 10 Iowa, 553; Hodges v. Brett, 4 G. Greene, 345. And there are many cases showing the application of this rule. See Diltz v. Chambers, 2 G. Greene, 479; Pilkey v. Gleason, 1 Iowa, 85; Woodward v. Whitescarver, 6 id. 1; Hodges v. Hodges, id. 78; Harmon v. Lee, id. 171; Park v. Long et al., 7 id. 434; Bain v. Galyear, 10 id. 585; Hynek v. Englest, 11 id. 210; Lyon v. Thompson, 12 id. 183, and cases there cited; and many other cases might be referred to in our own court.

2. JmnsBioTioif: when not presumed. But it is said that the certificate of the clerk shows that part of the return, “ the first line and part of the second, was torn off” after it came to the 1 _ .. _ court, and that we should presume from this that the return as made was in strict compliance with the statute. It was said by this court in Diltz v. Chambers, supra, that “the return of the officer should show a strict compliance with the law, as nothing will be presumed in its favor, when it appears that the requirements of the statute have not been observed.” Upon appeal, as in this.case, the jurisdiction of the court rendering the judgment appealed from, when denied, must be shown affirmatively, it cannot be presumed; but when collaterally attacked the jurisdiction will be presumed.

It is further urged by appellant’s counsel, that since the return was sworn to on the 21st day of December, preceding the March term of court, it is certain that the service was made a greater length, of time before the term of court than required by statute (§ 2815), and hence the object of the statute in requiring the time of service to be stated in the return is fully met. To this it may be answered that the service, for aught that appears, was on Sunday, and void under our statute (§ 2820). The object of the statute is not only to insure service of notice the requisite length of time before court, but is also to show the service to have been made on a proper day, or at a legal and proper time.

3 _service ■ state™4 4he judgment. Another objection to the judgment is, that it is pei’sonal against the defendants, and not simply in rein — against the mortgaged property. Where the defendants are served without the State, no personal judgment can properly be rendered against them. Darrance v. Preston, 18 Iowa, 397.

4_defauit when set aside, Aside from these objections to the jurisdiction, it seems to us, that upon the showing made in the affidavit and answers, especially in view of the amount involved, the character of the defense, and the promptness with which the motion was made, etc., the District Court should have set aside the default and permitted the defense.

The judgment of the General Term is therefore

Affirmed.