Dissenting Opinion.
Elliott, J.I am compelled to dissent from the conclusion reached in the prevailing opinion. There is but one point decided and that is this: A defendant may, for the pur*394pose of setting up a defence, contradict a sheriff’s return to the summons. The question is not whether a defendant may show some excuse for not obeying a summons or may be relieved on the ground of fraud, but whether he may directly contradict the sheriff’s return. The complaint does not admit service and offer an excuse for a failure to appear; on the contrary, it broadly denies service. The pleading tenders only one issue, service or no service. The only question be-. fore us, therefore, is, whether a defendant can contradict the sheriff’s return?
It seems to me that it is not consistent with principle to permit the official return of a sworn officer to be contradicted, and that it is a departure from principle that will result in serious evil. There ought to be more respect given to a disinterested officer’s official act than to the statement of an interested party, and yet the view of the majority places both on substantially the same footing. Great harm, as it seems to me, will result from the ruling here announced, for it destroys the force which should attach to official acts, makes judicial proceedings uncertain and titles precarious. A sheriff can not always remember the parties served, and if we depart from his official return all is left to human memory, which at best is treacherous and uncertain..
Two cases are relied on by the majority, and these are Hite v. Fisher, 76 Ind. 231, and Smith v. Noe, 30 Ind. 117. It is with great deference that I submit that the first of the cases cited does not support the conclusion reached by the majority opinion. The default in that case was set aside as to one only of the defendants, and the affidavit of that defendant, William N. Hite, shows an excuse for not responding to the summons. It is the existence or non-existence of an excuse for not responding to the summons that marks the difference between the two classes of cases. It was not necessary to decide in Hite v. Fisher, supra, that the return of the sheriff can be contradicted by a party, nor, as I understand the opinion. was it decided. All that was decided is, that the de*395fendant showed an excuse for not appearing in obedience to the writ. That I am correct in this is apparent from the decision in Krug v. Davis, 85 Ind. 309, where the opinion was written by the same judge who wrote the opinion in Hite v. Fisher, supra, and where it was said: “ It necessarily follows that besides, or instead of, denying the fact of service, the complaint should have alleged that there was not in fact, and the record of the judgment did not show, a return of service of summons upon the judgment defendant.” Smith v. Noe, supra, does, perhaps, sustain the views of the majority, although the real ground of that decision is that the defendant was not a resident of the State.
, The cases asserting that the return of the sheriff to a summons or other writ is conclusive are very numerous, and in all of them it is decided that the return can not be contradicted, although an excuse for not appearing may be shown. In the latest decision upon this subject, the question was presented as it is here, was directly in the case, was discussed, was decided, and there is no possible way of reconciling the decision in that case with the conclusion which the majority announce in this case. Nichols v. Nichols, 96 Ind. 433. The decision in the case cited is supported by a long line of cases and has been for years the settled rule in this State. McConnell v. Hannah, 96 Ind. 102, vide p. 103; Hes-song v. Pressley, 86 Ind. 555, vide p. 559; Krug v. Davis, 85 Ind. 309; Cavanaugh v. Smith, 84 Ind. 380, vide p. 381; Clark v. Shaw, 79 Ind. 164; Hume v. Conduitt, 76 Ind. 598, vide p. 600; State v. Davis, 73 Ind. 359; Fry v. Gallaspie, 61 Ind. 478; Johnson v. Patterson, 59 Ind. 237, vide p. 240; Meredith v. Chancey, 59 Ind. 466, vide p. 469; Stockton v. Stockton, 59 Ind. 574, vide p. 578; Splahn v. Gillespie, 48 Ind. 397; Rowell v. Klein, 44 Ind. 290 (15 Am. R. 235); Williams v. Case, 14 Ind. 253; Harlan v. Harris, 17 Ind. 328; Lines v. State, ex rel., 6 Blackf. 464; Goodtitle v. Cummins, 8 Blackf. 179; Hamilton v. Matlock, 5 Blackf. 421. For cases in other courts see Murfree Sheriffs, section 668, auth. n.
*396The argument that the sheriff’s return is conclusive for the purpose of giving jurisdiction, but not for the purpose of conferring authority to conclude the defendant from making a defence is, I respectfully affirm, radically unsound. If the court acquires jurisdiction, then it has authority to pronounce judgment, and if it has authority to pronounce judgment, its-judgment is valid and conclusive. It seems to me logically impossible to separate the jurisdiction from the authority to pronounce a valid judgment. If there is jurisdiction of the subject-matter and of the persons, the judgment is valid and effective.
If a defendant is not served with process, then there is no jurisdiction, and without jurisdiction there can be no valid judgment. If, therefore, there was no service there was no jurisdiction, and the defendant, in asserting that there was no service of process, does not simply assert that there was an erroneous proceeding, but that there was, in legal contemplation, no judgment at all. There is, therefore, no middle ground. Either there was jurisdiction, or there was not jurisdiction; if there was jurisdiction, the judgment is valid; if there was not, the judgment is a mere nullity. The only logical course, as it seems to me, is to hold that by contradicting the sheriff’s return the defendant may show that there was no jurisdiction, or that there was jurisdiction, and, therefore, a valid judgment. As our eases have so long and so uniformly held that a defendant can not contradict the return, there is, as I view the question, only one course, and that is to hold that the return can not be contradicted, and consequently that there is jurisdiction and a valid judgment.
If it be granted that the return is conclusive, then it is legally impossible that a contradiction of the return can constitute an excuse. If the return is conclusive, no showing against it can be made for any purpose; if it is not conclusive, then a showing may be made against it for any legitimate purpose, so that, in order to hold that an excuse is made out by *397showing that there was no service, it must also be held that the return is not conclusive.
Filed April 11, 1885.It is difficult to perceive on what ground a defendant can be allowed to plead as an excuse a contradiction of a sheriff’s return, when that return is conclusive. An excuse can not be made out by showing what the law prohibits a party from showing.
The statute authorizing the setting aside of defaults upon proper excuse shown can not, in my opinion, be construed to mean that a defendant may show as an excuse a fact which the law concludes him from averring. The excuse meant by the statute is such, and such only, as there is no established rule of law prohibiting a party from making. A party can not have a legal excuse where there is a rule of law declaring that he may not set up the facts which he assumes constitute the excuse. The statute ought, I readily agree, to be liberally construed, but it ought not, as I think, to be so construed as to allow a defendant to construct an excuse out of facts which a long settled rule of law forbids him from averring. If a defendant, in addition to showing no service, should show facts indicative of fraud, then a case would be made out justifying judicial interference. This he might readily do by averring that the plaintiff knowingly took a judgment he was not entitled to, or by averring other facts establishing fraud. There are, indeed, many things that would justify an opening of the judgment, so that the defendant is n'ot remediless.
Other reasons might be urged in support of the views here hastily and imperfectly outlined, but the time at my command will not permit a more extended discussion.
Howk, J., concurs in this opinion.