Crawley v. Neal
Supreme Court of Arkansas
Appeal from Sebastian Chancery Court, Ft. Smith District; J. V. Bourlamd, Chancellor; 1. The return of the officer in an action to vacate a judgment, as also a recital in the record of due service, is only prima facie evidence of service, and may be overcome by proof, the burden resting on the plaintiff in the action to vacate. 32 Cyc. 514; 102 Ark. 252; 63 Id. 513; Id. 323; 72 Id. 265; 138 Id. 403. Appellant has met this burden.
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Appeal from Sebastian Chancery Court, Ft. Smith District; J. V. Bourlamd, Chancellor; 1. The return of the officer in an action to vacate a judgment, as also a recital in the record of due service, is only prima facie evidence of service, and may be overcome by proof, the burden resting on the plaintiff in the action to vacate. 32 Cyc. 514; 102 Ark. 252; 63 Id. 513; Id. 323; 72 Id. 265; 138 Id. 403. Appellant has met this burden. The wife was competent to testify touching' the question of substituted service upon her for her husband. C. & M. Dig., § 4146; 32 Cyc. 461, 462; 39 Ark. 182. 2. A…
1DissentMcCulloch, C. J.
Annie Crawley did not testify in the trial below, but appellant offered to prove by her that she was not served with process. The court erred in rejecting the offer. The issue as to service ought to be tried over again with the testimony of Annie Crawley admitted. She may or may not testify according to the offer made by counsel, or her testimony may be broken down and discredited on cross-examination.
With the testimony of Annie Crawley excluded, the finding- of the chancellor was not against the preponderance of the testimony. On the remand, of the case, appellant should be allowed to…
2Cases cited2 opinions
- Boyd v. RoaneSupreme Court of Arkansas · 1887
- Evans v. DavisSupreme Court of Arkansas · 1921