Reinhart v. Lugo

Vacating Judgment by Default — Power of Court—Discretion — Review on Appeal.—The supreme court will not interfere with the action of the trial court in making an order setting aside a default, and judgment thereon, and permitting the defaulting party to answer, where it appears to have been made upon an affidavit of merits, unless it affirmatively appears that the court was without jurisdiction to make the order, or abused its discretion in making it.

Id.—Proof of Service of Summons — Void Certificate of Deputy Sheriff. —The act and return of a deputy sheriff is a nullity, unless done in the name and by the authority of the sheriff; and a certificate of the service of summons by a deputy sheriff, or one acting as such, is void as proof of such service, if signed by the deputy in his own name, and not sworn to, nor purporting to be an affidavit of service; and a judgment by default will be set aside upon motion, if rendered upon such proof of service.

Id.—Jurisdiction of Person—Void Judgment.—If proof of service of summons is not made as required by law, the court acquires no jurisdiction of the persons of defendants, and has no authority to render judgment against them, and any judgment rendered without such proof is invalid and void, and may be set aside upon motion.

Id.—Entry of Default — Proof of Service — Authority of Clerk — Ministerial Functions—Condition Precedent.—The clerk of the trial court has no authority to enter a default of a defendant upon a void certificate of service of summons. The clerk in entering defaults exercises no judicial functions, but acts merely in a ministerial capacity, and unless he confines himself strictly within the statute, his acts can have no binding force. Before default can be regularly taken against a party, there must be positive and sufficient evidence in court of due service, and no substantial defect in that respect can be cured by subsequent knowledge of the fact.

Id. — Supplying Proof of Service—Hearing of Motion to Vacate — Relation. — Where a default and judgment are void, not because there was no service, but because there was, at the time of entering the same, no proof of service, the fact that, at the hearing of a motion to vacate the judgment, proof was made of the fact of service of summons at the time mentioned in the void certificate would not justify the court in refusing to vacate the judgment, although such proof might have been sufficient to have authorized the court, at any time after it was made, if the defendant had not answered, or had leave to answer, to enter a valid default and thereupon to proceed to a valid judgment; but it would not operate by relation to make that valid which when entered was void.

Id. — Finding of Due Service — Void Proof — Judgment Roll.—A finding of due service of summons is not conclusive proof of the fact of service, where the defendant has not answered, as against the evidence of service found in the judgment roll; and a default judgment, entered on a void certificate of service, is void, and is not validated by the fact that the findings recite the fact of due service, the summons with the accompanying proof of service being properly a part of the judgment roll.