Holmen v. Miller

¶1(dissenting).

¶2Idissent. I disagree with that portion of the majority opinion which holds that the affidavit by the sheriff alleging service upon a person of “suitable age and discretion” is prima facie valid. This case extends the rule of Temple v. Norris, 53 Minn. 286, 55 N. W. 133 (1893), by applying it to persons under 14 years of age,1 and places the burden of proof upon the defendant to establish affirmatively that the person was not of suitable age and discretion.

¶3The Temple case involved service upon a 14-year-old daughter of the defendent. Our court there pointed out that Minnesota law makes several distinctions as to rights and obligations of minors who have reached their fourteenth birthday. We give priority to the petition of such minors for the nomination of their own guardians,2 we permit them to be made defendants in civil litigation without service upon their parents or guardians,3 and we say they are capable of committing crimes.4 In the Temple case we held that a person of the age of 14 was of suitable age and discretion. But, as the majority points out, nothing was said in that opinion about service upon persons under 14 years of age, which is the fact situation in the instant case. I am not prepared to hold that such service would be invalid. However, to place the burden of proof upon the defendant to negate the affidavit of the sheriff’s return as to the fact of suitable age and discretion, in my opinion, is to extend our prior decisions to a conclusion neither required nor desirable.

¶4*111In Kueffner v. Gottfried, 154 Minn. 70, 73, 191 N. W. 271, 272 (1922), we held that “[u]pon the issues presented, the sheriff’s return was strong evidence in plaintiff’s favor. To overcome its effect as prima facie evidence, the proofs must be ‘clear and satisfactory.’ ” The issue presented in that case was whether or not service was made at defendant’s place of usual abode. The evidence showed that the deputy sheriff who had executed the affidavit had relied on his personal knowledge of defendant’s residence. The court further pointed out that this part of the return was entitled to less weight than the other parts.

¶5In Murtha v. Olson, 221 Minn. 240, 21 N. W. 2d 607 (1946), our court again considered the effect of the sheriff’s return of alleged service at the house of usual abode of defendant. In vacating a default judgment and invalidating the alleged service, we held (221 Minn. 246, 21 N. W. 2d 610) :

“The facts recited here distinguish this case from Kueffner v. Gottfried, 154 Minn. 70, 191 N. W. 271, supra, where the sheriff’s affidavit directly affirmed that within, his personal knowledge the place of service was defendant’s house of usual abode. While it is true, as stated in the Kueffner case, that the sheriff’s return is entitled to great weight, this rule is applicable only to those portions of the return which relate to facts within his personal knowledge. Other statements therein relating to a defendant’s place of usual abode, made without direct knowledge of any kind on the part of the sheriff, have no greater weight than like statements of other witnesses based upon like foundations. In the face of the direct denials of defendant and his witnesses and the lack of other corroborating evidence, the sheriff’s return was not conclusive on this point, and we hold that it was overcome by the affidavits and other testimony submitted by defendant on this issue.”

¶6Based on these decisions, I would hold that the party initiating the legal proceedings in question should bear the responsibility *112of establishing the validity of the proceedings. I would further hold that service upon minors under the age of 14 is at the risk of the party making the service, and if the party allegedly served establishes that the minor is under 14 years of age, the other party should have the burden of proving that such person is of suitable age and discretion. Such a rule would reduce the problems of continuous litigation over this question. Under the majority opinion, service upon a person of tender years is prima facie valid and the party served is faced with the burden of proving otherwise. This puts the burden on the wrong party. If the burden on the process server of determining close questions of suitable age and discretion is difficult or impossible, as suggested by the majority opinion, so be it. However, since the process server is required to establish the fact of defendant’s place of usual abode, I don’t conceive that it would be an unduly difficult problem to ascertain the age of the person with whom the process is left. I would hold the party being served is entitled to this, and if service is made upon a minor under 14 years of age, the party allegedly served should not be burdened with affirmative evidentiary problems in the ensuing litigation.