# Settlemier v. Sullivan

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## Dissenting Opinion

    Bradley
United States Supreme Court
97 U.S. 444
Settlemier v. Sullivan
ERROR to the Circuit Court of the United States for the District of Oregon.
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 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 per cent a month. The complaint contained copies of the notes, and prayed judgment for the amount with accruing interest. Indorsed 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 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 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, sect. 29.
Mr. J. N. Dolph for the plaintiff in error.
Mr. W. Lair Hill, contra.
MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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