ON PETITION FOR REHEARING. In their petition for a rehearing appellees insist that our opinion in this case conflicts with the holding in the case of Fry v. Gallaspie (1878), 61 Ind. 478, to the effect 3. that a party may not aver the falsity of a return made by a proper officer, except in a direct proceeding against the officer. We cannot agree that such conflict exists.
The rule so announced in the Fry v. Gallaspie case applies only to such facts as the officer is required by law to set forth in his return (Coan v. Elliott [1885], 101 Ind. 275), and only when the facts stated are official acts done in the ordinary and usual course of proceedings. Matters of opinion cannot be made evidence by stating them in the return. Hessong v.Pressley, Sheriff (1882), 86 Ind. 555; Lindley v. Kelley (1873), 42 Ind. 294; Splahn v. Gillespie (1874), 48 Ind. 397. *Page 52
The words, "upon order of plaintiffs' attorney," do not state official acts of the sheriff. Section 2-4109, Burns' 1933, § 644, Baldwin's 1934, provides for an endorsement of a return 4. order by plaintiff or his agent, not by the sheriff. The above quoted words express the conclusion of the sheriff as to the effect of acts or words of the attorney. Such testimony would not be competent if the sheriff were on the witness stand. He cannot, by placing it on the return, make it not only competent evidence but conclusive evidence.
Rehearing denied.
NOTE. — Reported in 37 N.E.2d 682.