¶1 (dissenting in part). The crucial point is whether the appellants have shown the trial court erred in holding service of the summons had in fact been made upon defendants in April, 1926. The burden is upon the defendants to show this.
¶2 The trial court, in weighing the affidavits and other proof offered, came to the conclusion that the defendants, though eminently reputable men, and undoubtedly stating the facts as they recalled them, had entirely forgotten an event which happened away back in 1926; and this forgetfulness persisted, even after the one who claimed to have served the summons set out in detail how the service had been made.
¶3 The majority of the court find the trial court was in error. I do not agree with this view or that the defendants have shown that degree of certainty necessary to overcome the determination of the trial court. Eor this reason, I dissent from that part of the decision.
¶4*278 However, this holding being the decision of this court, then it is clear the defendants, by answering, have submitted to the jurisdiction of the court; and therefore, the matter in controversy should be determined as if the first issue had not arisen.