The Weekly Kansas chief. [volume] (Troy, Kan.) 1872-1918, 1878-03-14
The Case 81 o'Drs.o.al W. ssp.r.

The Case 81 OsDrsscela W, ssper.
The following is the opinion Of the supreme Court
in full, in the case of B. ODriscol vs. Mrs Frances
L. soper, which decision settles the title to large
number of lots in Troy:
ODRIsCoLL VS.. SoPER-
Inc opinion Of the Court was delivered by Brewer
Judgment Of the District Court of Doniphan COUNTY
rendered in April, 1853. The facts are these: Tie
ants were duly summened." The papcrs and 6Ies
IN that case were destroyed by fire. II there were no
G %sesa testimony the decisions in Bssy Va HALEY II
would sustain the validity Of the Judgment finding
and adjudication by Court Of record of the fact Of
s ~ ,gd yoee evidence therecf To overthrow
TINS, the nnai record was offered in which appears
COPIED summons with the officers return of service
upon one defendant only and that not the defendant
N s ios. were aer.ards sold and who plaintiff
TWO defendants, and the finding Of service and the
Judgment were against both. Upon this, counsel in
woke the aid Of that rule which declares that where
the record discloses service in q particular manner
no presumption arise that other and different SER
vice was mode. In other words the record here dis
closes service upon one defendant, and presump-
ton can arise that service was also made upon the
other defendant. The record contains but the one
and the one service and By the record the
s ed IN fs general seoge and effect we are content
Where the record dissaoses service IN one way, there
another and better way The finding Of due service
in the journal entry Of Judgment if simply general
finding is limited and controlled by the service actu
ally appearing in the record. But We are constrain
ed to hold that in this case the rule il not con-
elusive, and that its operation is destroyed by
other facts also appearing in tho record The final
recor copies out summons and return Of service
1t Is silent to the existence of any other
or return. 1t nowhere afrmatvely states that only
one summons was Issued and one return made; and
states his fees at s260 Turning now 70 the appear
ance docket, docket required by the statute TO be
kept, and as much a record the final record, We
r
the fees therefor and the sheriff fees thereon
cd ut $50 True, the sneYes not full tho
statute required in that the of the defendants
summoned are not noted, the returns copied but
still so far as they 60 they are evidence and evidence
of record Again, appears by the record, in OctO
ber 1850, and before the sale to this defendant,
ODriseoll filed his motion TO set aside sale made by
the Sheriff under this Judgment, and his motion
sustained. Still again. in September 1862 and after
the sale to defendant ODriscoll sgain appeared by
notion to retax costs. IL We 60 outside the record
County Bar at the time Of the rendition Of said udg
ment, and resident of that County since except
during the war; that he was present at both Sheris
sales that he requested the officer to sell certain lots
first and asked some gentlemen to purchase lots for
his own benefit; that he attempted to disturb
the possession of the purchasers at such sale until
Of limitation; and though he knew Of the existence
of this Judgment, and the proceedings under it. does
than years after its rendition, and until after the
files had been destroyed by fire. Again, BOder |
who was Deputy Clerk at the time the suit COM
menced, testified: ut the custom, when was |
Deputy Clerk, and when the Patrick O'Driscoll
case was commenced to issue many summonses as |
there were defendants" He also testified: Il was |
present when the entered, and when the |
return was called for by the Judge. Mr.. Sidney |
Tennent, Attorney, said it all right, holding up
two papers in his hand, and offering TO read the
turns; and the Judge then said 1t is all right; that
is unnecessary was special deputy when the final
returns were made. The 0'Drseoll summons could |
not be found think had it time before"
Now whether not the doctrine of equitable estOI-
pei would have any effect i'm this claimed by
counsel, We shall not enquire. We shall consider no
matters outside the record except such
Mt tends to prove the fact and contents of lost in
strument. Upon the record, it stands hold the
Judgment valid. And we lay down these correct |
pro positions Of law:
l. The finding in the journal entry of judgment of
Court of record of due service of summons primo
taeie evidence thereof
, Where this finding is i'm general terms, and the
will be presumed to have reference to that service,
and the validity of the judgment will be determined
by the sufhcieney of that service.
j. But where the record discloses that in fact two
summOnses were issued, and two services made, and
the papers in the case including the summonses,
all lost or destroyed the priad cie evidence of
vice from the recital of the journal entry will be
overthrow by the fact that but summons and |
one return copied into the final record
4. The final record, the Journal, and the appear |
ancc docket are each records of the Court and the
silence Of the former does not negative the existence
of fact shown by either Of the two latter.
These propositions compel an affirmance of the |
|
Ali the Justices eoncurring
true copy. Attest:
) SEAL Clerk Supreme Court