Northwestern & Pacific Hypotheek Bank v. Ridpath

Citations

• 29 Wash. 687
• 70 P. 139
• 1902 Wash. LEXIS 630

Syllabus

<p>JUDGMENTS —- DIRECT ATTACK BY CROSS COMPLAINT.</p> <p>When a defendant flies a cross-complaint and seeks affirmative relief, it is in tbe nature of an original action, and an attack on a judgment made in such cross-complaint is a direct, not a collateral, attack.</p> <p>SUMMONS-AFFIDAVIT OF SERVICE-OVERCOMING PRESUMPTION FROM SHERIFF’S RETURN.</p> <p>The sheriff in bis return to a summons set forth that defendant could not be found in tbe county and that to tbe best of his information be resided in New York city; an alias summons was issued and served by a private individual, who made affidavit that be served said defendant at tbe bouse of bis usual abode in Spokane by leaving with bis wife, then residing there, a copy of tbe summons and complaint. Held, that due service on defendant was shown, since tbe sheriff’s return of non-residence was not conclusive, but only presumptive evidence, inasmuch as the statute does not require such return to set forth tbe defendant’s residence, and any presumption arising from such return was overcome by tbe affidavit of personal service.</p> <p>SAME-SUFFICIENCY OF SERVICE — PRESUMPTIONS.</p> <p>Where an affidavit of service of summons by a private individual merely recited conclusions of affiant as to such service, instead of setting forth necessary facts, it was sufficient t'o raise a presumption of proper service, and where such proof was not attacked in tbe original proceeding, but the court found that personal service had been made, a court of equity will sustain the judgment in a subsequent attack made on' account of such irregularity.</p> <p>SAME-RETURN OE SERVICE-USUAL ABODE.</p> <p>The return of service of a summons showing that it was left at the house of defendant’s “usual abode in the city of Spokane” does not import that defendant had another residence elsewhere.</p> <p>SAME-EVIDENCE OE EUJTS RECITED.</p> <p>The return of service of process, either by a sheriff or by a disinterested person authorized by law to make