readily do by averring that the plaintiff knowingly took a judgment he was not entitled to, or by averring other facts establishing fraud. There are indeed many things that would justify an opening of the judgment, so that the defendant is not remediless.

Other reasons might be urged in support of the views here hastily and imperfectly outlined, but the time at my command will not permit a more extended discussion.

Howk, J., concurs in this opinion.

And afterwards, to-wit, on the twenty-first day of January, 1886, the court, being sufficiently advised in the premises, overruled a petition for a rehearing, heretofore filed in this behalf, with the following opinion by ZOLLARS, J.:

The numerous cases cited by appellee's learned counsel, and in the dissenting opinion, assert the general rule that a sheriff's return to a summons cannot be contradicted by the parties, in order to overthrow the service and defeat the jurisdiction of the court over the person of the defendant; and that such officer's return to such summons, or to any other writ to which it is his duty by law to make a return, cannot be controverted by the parties in a collateral proceeding. In none of them was the question presented as in this case, except in the case of Nichols v. Nichols, 96 Ind. 433, which was noticed in the principal opinion.

The case of Angell v. Bowler, 3 R. I. 77, cited by appellee's counsel, is where a party appeared for the sole purpose of dismissing the action by disputing the sheriff's return. That is not this case. The case of Stoors v. Kelsey, 2 Paige, 418, was a collateral attack upon a sheriff's return to an execution, and so the case of Taylor v. Lewis, 2 J. J. Marsh. 400; was an action to enjoin the collection of a judgment on the ground that the summons had not been served upon the defendant in the original action. That was a collateral attack, and in the decision of the case the court asserted the general rule that in such cases the sheriff's return was conclusive as between the parties. This, again, is not the case before us.

It is a rule everywhere that a party to an action is entitled to have his day in court, and that no one should be convicted, or mulcted in damages, without a hearing, or an opportunity to be heard. In furtherance of this rule, it was enacted in this state, in 1852, if not before, that the court might, in its discretion, at any time within one year, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. This left the relief discretionary with the court. The Code of 1881 extends the time to two years, and makes the granting of relief the imperative duty of the court. 2 Rev. St. 1876, p. 118, § 99; Rev. St. 1881, § 396; Smith v. Noe, 30 Ind. 117. These statutes show that the legislature intended that full opportunity should be afforded to all persons to make whatever defense they may

have to actions brought against them. The rulings of the courts have been that such statutes should be liberally construed, so that their purpose may be carried out.

It is conceded here that if appellant in his complaint had admitted that the summons was served upon him, he might then render an excuse, and a sufficient excuse, for not having appeared to the action, and hence have the default set aside, and be allowed to make a defense. The contention is that, because he asserts that no summons at all was served upon him, therefore he can have no relief under the statute. Granting this contention would seem to result in this: If a party has been served with summons, and thus afforded at least some opportunity to appear and make a defense, and neglects to do so, he may render an excuse for the neglect, have the judgment opened, and make his defense afterwards. If he has not been served at all, and has thus had no opportunity to know of the action against him, and hence no opportunity to appear and defend, he can render no excuse that will entitle him to relief under the statute. In other words, where he ought to have the lesser excuse, an excuse can be made available; but where he ought to have the greater excuse, he can have no excuse at all.

The construction of the statute contended for would, to a large extent, thwart the purpose of the statute, and should not be given to it, unless imperatively demanded by some rule of the law. The rule invoked by appellee is the general rule that the sheriff's return cannot be contradicted; and it is said that the one question presented is, can the sheriff's return be contradicted? Thus broadly stated, that is not the one question presented by appellant's application to be allowed to defend the action. He does not assert that the judgment is invalid. He does not assert that the court acquired no jurisdiction over him because the summons was not served upon him. His complaint is not to have the judgment declared a nullity; on the contrary, he impliedly admits the validity of the judgment, and the jurisdiction of the court over him, by asking that the judgment be opened, and he be allowed to defend. He cannot dispute the service for the purpose of assailing the judgment as void, nor of disputing the jurisdiction of the court over him. He cannot do this by reason of the rule invoked by appellee. That rule says that, for the purpose of jurisdiction, the return of service by the officer is conclusive, although in fact there may have been no service.

The officer having made a return of service upon appellee, therefore, for the purpose of acquiring jurisdiction over him, he was in law served with summons. He neglected to appear and was defaulted. The statute says that if he can show surprise or excusable neglect that default shall be set aside. For the purpose, and for the sole purpose, of showing a sufficient reason for not appearing and making defense, he asserts that the summons was not in fact served upon him, and that hence he had no actual notice or knowledge of the action against him; and that having had no such notice or knowledge is his excuse for not appearing and defending the action, and is the excusable neglect, on account of which he should now be allowed to defend. This, certainly, is a rea

sorable and a sufficient excuse, and one that he ought to be allowed to make in order that he may have his day in court. Such an excuse no more overthrows or unsettles judgments than the excuse that the party did not, for reasons given, understand the summons, and many like excuses that have been held sufficient under our statute, and like statutes of other states. It is not sufficient answer to say that a party may have his remedy against the sheriff for a false return. The sheriff's bond in this state is in the amount of $5,000. The judgment by default, and upon the incorrect and false return, may be for $50,000 or more.

It is difficult to understand how it can be contended that the cases of Hite v. Fisher, 76 Ind. 231; Smith v. Noe, 30 Ind. 117; and Zerger v. Flattery, 83 Ind. 399,-are not in point in support of the principal opinion.

In the case of Hite v. Fisher, supra, judgment in garnishment has been taken against William N. Hite, George W. Hite, and Darius Patterson by default. The summons as to them was returned as served by reading. They made application, under the statute, to have the judgment opened, and to be allowed to defend. The Hites based their application upon the fact that the summons was not read to nor by them; that the bailiff told them he had a subpoena for them, but read nothing to them. They thus asserted a fact contradictory of the officer's return. Patterson based his application upon the fact that the summons was not served upon him, either by reading or a copy, and that he had not seen the officer at all. He thus stated facts contradictory of the sheriff's return. This asserted want of service, and hence want of notice, was offered as an excuse for the failure of the parties to appear, and as a reason why the judgment should be opened, and they be allowed to defend. The question was made that their applications should be rejected, because they were attempting to contradict the officer's return, in order to furnish an excuse for not having appeared. In answer to this contention it was said:

"It [the return] is conclusive between the parties as respects the fact of service, and the jurisdiction based thereon. But the application of appellants is not to set aside the service, and does not involve the jurisdiction of the court over their persons in the case. The whole scope and significance of their motion is to show that while, in contemplation of law, they had been served with summons, they had no actual knowledge of the institution of the suit or procedure against them, and therefore, under the circumstances, are excusable for neglecting to ap pear and make the defenses which they claim. For this purpose, upon every principle of good conscience and right, and without violence to any rule of law or practice, it was competent for the appellants to make the showing which they did present; and upon that showing we think it clear that, within the meaning of the statute, the judgment was taken against them through their surprise and excusable neglect.

What was said by the same learned judge in the case of Krug v. Davis, 85 Ind. 309, is not at all in conflict with the above, because that was a case of a collateral attack, and not a case to set aside a default under the statute.

In the case of Smith v. Noe, supra, the defendant, although a non-resident of the state, was served with summons in this state. Such bona -fide service upon a non-resident gives the courts of this state jurisdiction

The case,

of the person, the same as if he were a resident of the state. therefore, did not turn upon the fact that the defendant was a non-resident of the state, except so far as that fact had a bearing upon his neglect to appear to the action. The summons was in fact served upon him on Sunday. The sheriff's return showed that it was served on Monday. A service on Sunday is void, and if the sheriff's return had shown the service to have been on Sunday, the court would have rejected it, and the defendant would not have been defaulted. Upon the application to have the default set aside for the purpose of a defense, the defendant was allowed to contradict the return, and show that the summons was in fact served on Sunday, not for the purpose of defeating the jurisdiction of the court over him, but for the purpose of showing that he had an excuse for not appearing, in that he had a right to expect that the sheriff would make a true return, and, as such a true return would have defeated the summons, the defendant's reliance upon such a return being made furnished some excuse for his not appearing.

The case of Zerger v. Flattery, supra, is in full accord with the two cases above examined. They are there both cited and approved. In that case, again, the defendant was allowed to contradict the sheriff's return, not for the purpose of defeating the jurisdiction of the court over him, but for the purpose of rendering an excuse for not appearing to the action, and hence as furnishing a reason why the default should be set aside, and he be allowed to defend.

We are not without authority elsewhere in support of the principal opinion. The case of Mosseaux v. Brigham, 19 Vt. 457, was decided under sections of the law of that state found in the Revised Statutes of that period. That revision is absent from our library, but we find in the Revised Statutes of that state, 1863, pp. 282-334, §§ 39-334, what are evidently the same as the sections referred to in the opinion in the above case. These statutes provided that justices of the peace might set aside a default at any time within two hours after the rendition of the judgment. They also provided that, when a judgment should be rendered by a justice of the peace upon a default, and the defendant should be unjustly deprived of his day in court by fraud, accident, or mistake, or should be prevented from entering an appeal from the judgment of a justice of the peace by fraud, accident, or mistake, the county court might, on the petition of the person aggrieved, in its discretion and on terms, revise and set aside the judgment of such justice, and proceed to hear, try, and determine such action, etc.

In the above case, the party against whom judgment had been rendered by the justice upon default petitioned the county court to set aside. that judgment, and to be allowed a trial in the case. He alleged in his

petition that he had no notice of the suit until after the rendition of the judgment. It appeared from the record of the justice of the peace in the original suit that notice to the petitioner of the pendency of that suit was proved, prior to the rendition of the judgment against him by default. In support of his application the petitioner was allowed to prove that he, in fact, had no notice, the justice's record to the contrary not

withstanding. It was contended in the supreme court that the admission of that evidence was erroneous, upon the ground that the service shown by the justice's record could not be thus contradicted. The court held otherwise. After noticing the fact that the justice's record showed notice to the defendant, and suggesting the inquiry as to whether that was an obstacle in the way of relief, and after recognizing and restating the general rule that the record of a court, having jurisdiction of the subject-matter, imports absolute verity, the court said:

"If the revisory power of the county court over the judgment of a justice could not be exercised where it appeared from the record that the defendant had had notice of the suit, by disproving the notice, a large class of the most probable cases of accident and mistake, if not fraud, would be excluded from its consideration. The fact of notice usually appears in the officer's return on the writ, and that return, becoming a part of the record, is of equal verity, between the parties to the suit, with a record of a proof of notice. If the officer, in his copy left with the defendant, by mistake, inserts a more distant day for the holding of the court than that in the writ, or by mistake delivers his copy to a person other than the defendant, by reason of which a default is taken, shall the party, in such case, be allowed to enjoy the fruits of an unjust judgment, and the defendant be turned over to an uncertain remedy against an innocent officer? Or may not the county court, on such terms as shall preserve the rights of the plaintiff, set aside the default, and allow the injured party a trial? Such a case presents as strong a case for relief as a case where the defendant, having notice, is prevented by some accident from reaching the place of trial at the appointed time. In the latter case additional precaution in the defendant might, perhaps, have guarded him against the injury; but in the former no diligence of the party could prevent it. Both classes of cases seem to have been designed to be provided for by the statute; and, as the county court is clothed with the power of granting the relief on such terms as will preserve the rights of both the plaintiff and defendant, the furtherance of justice, as well as the language and intention of the legislature, appear to require that the statute should receive the extended construction we have given it." The reasoning in that case is applicable to our statute and the case before us.

There was a provision in the California Code, like that in ours, that the court might relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. Code Cal. 1872, 68, § 473. The case of McKinley v. Tuttle, 34 Cal. 235, was an application, under the above section of the Code, to set aside a judgment on the ground that the petitioners had no notice or knowledge of the judgment until after the expiration of the term. This was resisted upon the ground that the record showed that they appeared and defended by attorneys. In noticing the contention that the petitioners could not contradict the record by showing that they had no notice or knowledge of the judgment, the court said:

"Such would doubtless be the result if the question had arisen collaterally, but not so in a direct proceeding in the same action to set aside the judgment under section 68. In such a case the parties are not concluded by the record in any respect; on the contrary, they are allowed to show the true facts by any competent evidence."

Section 366 of the New York Code provides that if the defendant failed to appear before the justice, and it is shown by affidavit that manifest injustice has been done, and he satisfactorily excuses his default, the county court, on appeal, may, in its discretion, set aside or suspend the judgment, and order a new trial before the justice, etc. Voorhees, Ann.