
    CASE 29.
    JULY 7.
    Case, Davidge, &c., vs. Colston.
    MOTION TO SET ASIDE ORDER OF HEARING AND JUDGMENT OF THE COURT OF APPEALS.
    1. A return by the sheriff of a summons upon appeal, “ executed on J. H. C. by reading the within,” is insufficient. It should state that a copy was delivered to, or offered to and refused by, the defendant. {Civil Code, sections 74 and 75.)
    2. Where the officer makes a return of executed upon a summons, without stating how it was done, the presumption is that it was done according to law. But where it appears from the return that the law has not been complied with, the presumption cannot arise that the process has been properly executed.
    The facts appear in the opinion of the court.
    Roncead and Baer for appellants.
    
    Fey and Fields for appellee—
    The order of hearing and judgment should be set aside because there was no appearance by appellee, and the service of the summons is insufficient. (Civil Code, sections 74, 75, and. 878.)
   JUDGE SIMPSON

delivered the opinion of the court:

The motion of the appellee to set aside the order of hearing in this case, upon the ground that there had been no legal service of the process upon him, must be sustained. The return made by the sheriff on the summons is as follows: “ Executed on J. II. Colston by reading the within.” The law provides, that the service shall be by delivering to the defendant a copy of the summons. If he refuses to receive it, the offer of it to him shall be a sufficient service. The return by the officer must, in all cases, state that a copy was delivered to, or offered and refused by, the defendant. (Sections 74 and 75, Civil Code.)

Where the officer makes a return of executed, without stating how it was done, the presumption will be indulged that it was done according to law, and the failure to state in the return that a copy was offered or delivered to the defendant, will not vitiate the return. But where the officer, as in this case, states in his return how the process was served, and it thereby appears that the law has not been complied with, no presumption can arise that the process was properly executed.

Wherefore, the judgment and order of hearing are set aside and the cause is ordered to be re-docketed.  