#### J. S. JORDAN v. MRS. LYDIA McKENZIE.

(Filed 26 November, 1930.)

1. Process B f — Return of process by sheriff showing service is prima facie evidence of service, but is rebuttable.

A summons returned by the sheriff showing service is prima facie evidence that it had been served, but it is not conclusive, and the contrary may be shown by clear and unequivocal evidence.

S. Judgments K d — Remedy to set aside judgment for failure to serve summons is by motion in original cause when record shows sheriff’s return.

Where it appears by record that the sheriff’s return shows that a summons has been served on the defendant, and the defendant contends to the contrary that in fact it had not been served, the defendant’s remedy is by motion in the cause, and when it appears of record that no summons has been served, his remedy is by independent action, and in such instances the judgment is subject to collateral attack.

3. Appeal and Error K a — Upon failure of court to find facts on motion to set aside judgment for failure of service the case will be remanded.

Where a judgment by default has been entered against a defendant by the clerk for the want of an answer, and thereafter the defendant has died and his administrator moves the court to set it aside on the ground that the sheriff’s return of service was not in truth and fact correct, and that the summons had not been served, and offers sufficient evidence to sustain his motion, it is the duty of the Superior Court judge hearing and determining the matter to set out in his judgment denying the motion his findings of fact with his conclusions of law, and on appeal the case will be remanded when he has failed to do so.

Appeal by D. A. McKenzie, administrator of Mrs. Lydia McKenzie, the defendant, from Barnhill, J., at March Term, 1930, of Moose.

Remanded.

This is an action to recover of the defendant the sum of $341.25, damages for breach of the covenant of seizin contained in a deed by which the defendant conveyed to the plaintiff the land described therein.

The action was begun in the Superior Court of Moore County on 22 March, 1928. On Monday, 30 April, 1928, judgment by default final was entered by the clerk of said court. In said judgment it is recited that it appeared to the court that the summons and the complaint, duly verified, had been duly served on the defendant by the sheriff of Scotland County, on 24 March, 1928, and that no answer or other pleading had been filed by the defendant. It was thereupon adjudged, on motion of the plaintiff that plaintiff recover of the defendant the sum of $341.25, with interest and costs.

*751Since tbe rendition of tbe judgment by default final in tbis action, tbe. defendant, Mrs. Lydia McKenzie, bas died. Her son, D. A. McKenzie, was duly appointed ber administrator on 11 March, 1930.

On 22 March, 1930, after notice to plaintiff, tbe said D. A. McKenzie, administrator of Mrs. Lydia McKenzie, tbe defendant, moved in tbe action before tbe clerk of tbe Superior Court of Moore County, that tbe judgment by default final be set aside and vacated, on tbe ground (1) that tbe summons herein was never served on tbe defendant, Mrs. Lydia McKenzie, notwithstanding tbe return thereon to tbe contrary; and (2) that in any event, upon tbe cause of action alleged in tbe complaint, plaintiff was not entitled to judgment by default final, but at most only to judgment by default and inquiry.

From tbe order of tbe clerk, denying bis motion, tbe said D. A. McKenzie, administrator of Mrs. Lydia McKenzie, appealed to tbe judge of tbe Superior Court, bolding tbe courts of Moore County.

At tbe bearing of said appeal at March Term, 1930, of tbe Superior Court of Moore County, evidence was offered by tbe said I). A. McKenzie, administrator, tending to show that on 24 March, 1928, tbe day on which it appears from tbe return thereon, that tbe summons in tbis action was served by tbe sheriff of Scotland County, Mrs. Lydia McKenzie, tbe defendant, was at tbe borne of ber son, D. H. McKenzie, in Scotland County; that on said day tbe said defendant was confined to ber bed, suffering from a disease, which soon thereafter caused ber death; that because of said disease, she was at times delirious, and incapable of understanding tbe purpose and effect of tbe service of a summons; that ber condition, both physical and mental, on said day, was made known to tbe deputy sheriff, who bad come to ber son's home to serve tbe summons and complaint in tbis action; that at tbe request of defendant’s son, tbe deputy sheriff did not read or undertake to read tbe summons to Mrs. Lydia McKenzie, or leave with ber a copy of said summons or complaint; that a copy of tbe summons and complaint was left by tbe deputy sheriff with tbe son of Mrs. Lydia McKenzie, who undertook to deliver tbe same to tbe defendant as soon as she should be capable of understanding tbe purpose and effect of tbe same; and that from said date to tbe date of ber death, shortly thereafter, Mrs. Lydia McKenzie was continuously incapable, because of ber disease, of understanding either tbe purpose or effect of tbe service of a summons, and for tbis reason, her son did not deliver tbe copies of tbe summons and complaint to ber. Tbe only evidence offered by tbe plaintiff was tbe return on tbe summons, from which it appeared that tbe summons bad been duly and regularly served on tbe defendant by tbe sheriff of Scotland County, on 24 March, 1928.

*752At tbe conclusion of tbe bearing judgment was rendered by tbe judge presiding, denying tbe motion of D. A. McKenzie, administrator, and affirming tbe order of tbe clerk.

Tbe only fact set out in tbe judgment as found by tbe judge, with respect to tbe service of tbe summons, is as follows: “Tbat tbe summons herein appears to have been duly and regularly served.”

Tbe judge did not pass upon tbe contention of D. A. McKenzie, administrator, tbat on tbe cause of action alleged in tbe complaint, plaintiff was not entitled, in any event, to a judgment by default final. He concluded only tbat “by tbe default judgment rendered substantial justice bas been done, and tbe motion therefore is denied.”

From tbe judgment denying bis motion, and affirming tbe order of tbe clerk, D. A. McKenzie, administrator of Mrs. Lydia McKenzie, tbe defendant, appealed to tbe Supreme Court.

L. B. Clegg for plaintiff.

Henry Seawell for defendant.

CoNNOR, J.

Where it appears on tbe record, as in tbe instant case, tbat tbe summons in an action was duly served, and tbe defendant alleges tbat in truth and in fact tbe summons was not served, as appears by tbe return thereon, and on this ground tbe defendant prays tbat a judgment by default be set aside and vacated, bis remedy is by a motion in tbe cause, and not by an independent action; it is otherwise, where it appears on the record tbat no summons was ever served on tbe defendant. In tbe latter case tbe judgment is subject to collateral attack, whereas in tbe former case tbe attack must be direct, and made by motion in tbe action in which tbe judgment was rendered. This principle is stated by Walker, J., in Stocks v. Stocks, 179 N. C., 285, 102 S. E., 306, and is approved as stated by Allen, J., in Caviness v. Hunt, 180 N. C., 384, 104 S. E., 763.

Tbe return of a sheriff or other officer to whom a summons was directed for service, showing tbat the summons bas been duly served on tbe defendant, while prima facie sufficient to show tbat tbe summons bas been served, is not conclusive. Tbe contrary may be shown by evidence wbicb is clear and unequivocal. Long v. Town of Rockingham, 187 N. C., 199, 121 S. E., 461.

In tbe instant case, it does not appear from tbe judgment tbat tbe judge bas found tbe facts involved in tbe contention of appellant tbat tbe summons was not in truth and in fact served on defendant, or tbat the judge bas passed upon or decided tbe question of law involved in tbe contention tbat upon tbe cause of action alleged in tbe complaint, plaintiff was not entitled, in any event, to judgment by default final. Tbe action is therefore remanded, with direction tbat tbe judge find *753the facts from the evidence and set them out in his judgment, and if he shall find that the summons was in truth and in fact duly served on the defendant, as appears by the return thereon, with direction that he pass upon and decide the question involved in the motion, whether on the allegations of the complaint, the plaintiff was entitled to judgment by default final. It is so ordered.

Eemanded.