Page:Borden v. State ex rel. Robinson.pdf/52

570 It may be well, in order to show more clearly my views upon the subject of presumptions, which I will presently notice, for me to refer to the effect of an informal or defective service of the writ. Where an attempt has been made by the proper officer to execute a writ (not void) by any of the modes prescribed by law, although the return is defective; yet as the legal sufficiency of the return is a matter for the consideration of the court, like the legal sufficiency of the declaration is, although the court may err in its judgment, yet as the court had a right to decide and is presumed to have decided upon it, although it might be reversed for error it would until reversed uphold the judgment of the court. Where however the writ has no return, there are no facts upon which the judgment of the court can act, nothing to judge of, and therefore no judgment could be rendered. It would be like declaring a blank paper filed, a declaration, and assuming jurisdiction of the subject matter upon the strength of such judgment. Should the writ be lost and it was made to appear that one had issued, then in its absence we might presume in favor of service, but not where there was nothing to show that a writ issued. That would be basing a presumption upon a presumption; first, that there was a writ, and then that it was served. This is never permissible.

I do not intend to be understood as assuming that every fact necessary th confer jurisdiction on a court of superior jurisdiction must affirmatively appear of record. In this I think the former decisions have gone too far. Every reasonable presumption in favor of the rightful exercise of jurisdiction ought to be indulged. But where the record (the writ and return being taken as part of it) repels the presumption of notice, as in case the writ should be returned "not found," and the record should state that the defendant made default, there no ground for presumption would exist; for the writ would negative the presumption of service, and the record, or voluntary appearance; and as these are the only legal means by which the court could acquire jurisdiction of the person (unless by publication, and then the record would show that fact if it existed) no presumptions could be indulged.