Husar v. Husar

SCOTT (R. H.), J.

pro

tem.

Defendants appeal from a decree vacating a default judgment in a previous action.

Plaintiff and defendant Húsar were formerly husband and wife. Defendant Biscailuz, as sheriff, is involved only be

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cause there is a dispute concerning service by one of his deputies of the complaint and summons in the earlier case.

The complaint in the instant case alleges that on January 6, 1939, Leonard Húsar brought suit against Lois Húsar, in case No. 435,369, to recover certain personal property or in lieu thereof damages in the sum of $15,045. On January 24, 1939, judgment was rendered in favor of Leonard Húsar. More than a year later, on January 29, 1940, he caused an execution to be levied on certain personal property of Mrs. Húsar. The complaint further alleges that in said action Mrs. Húsar was never served with summons and complaint, that her default had been entered upon proof of service and judgment rendered thereon, but without actual service having-been made on her, and that she had no knowledge or notice of the commencement or pendency of said action or judgment until about February 14, 1940. It included further allegations that for more than ten years prior to the former action Mrs. Húsar had been in exclusive possession of the property in question and that Mr. Húsar had executed a quitclaim deed of the property to her.

The trial court in the instant case found the allegations of the complaint as above outlined to be true. It further found that during the trial the parties to this action stipulated in open court “that if this court should find from the evidence that the plaintiff had not been served with summons or complaint in said action number 435,369, there was sufficient showing and probability to justify the trial of said action number 435,369 upon its merits, and that by reason of said stipulation it would not be necessary for the court to receive or hear evidence upon the alleged meritorious defense of the plaintiff herein, Lois Húsar, to the alleged cause of action set forth in the complaint in said action. ’ ’ The court also found that “Lois Húsar was never served with summons or complaint in said action number 435,369 and by reason of such finding of fact the stipulation above referred to has become operative ’ ’; and the court found in accordance therewith.