When, on a previous day of the term, this cause was decided, I dissented from the conclusions reached by a majority of this court, and I now file the grounds of my dissent.
When a judgment is impeached by contradicting the sheriff's return of service, that officer is a necessary party to the suit, and a court of equity should not hear evidence contradicting his return, unless it be averred that the return showing service upon the defendant was the result of either the fraud or the mistake of the officer. Public policy, in my judgment, requires that the verity of the records of courts of justice should be protected from assault by parol evidence, except upon a direct charge of either fraud or mistake. But waiving all questions as to the sufficiency of the petition, I am of the opinion that the judgment of the lower court should be reversed; because the evidence is not only not clear and satisfactory that Mrs. Jordan was not duly served with notice of the suit, but the finding of the learned judge who tried the cause, that the defendant was not served, is, in my judgment, *Page 281 against the weight of the evidence, and this court is not relieved from the duty of reversing the findings of the lower court because the evidence is conflicting. A conflict in the evidence does not authorize the court to adopt the findings or conclusions of the trial court.
The statute which requires this court to give its conclusions upon the facts, and from which there is no appeal, imposes upon the court the duty of revising and passing upon the findings of the jury or the judge trying the cause, in every case in which the facts are controverted, uninfluenced by the verdict or findings of the judge.
This court owes it alike to the appellant and to the Supreme Court to give its own conclusions upon the facts. This I think is not done in the opinion rendered in the decision affirming the judgment in this cause.