
    SMITH COMPANY v KIBBY et
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided Nov 16, 1931
    A. J. Layne, Ironton, for plaintiff.
    A. R. Johnson, Ironton, for defendants.
   BY THE COURT

The real issue in this proceeding grows out of the cross petition of George Kibby which prays for a cancellation of the judgment described in the petition. If said judgment is void the company has no right to a finding for any amount and that said finding be made a lien on the real] estate of Kibby.

We hold it to be an established rule of law that the proof must be clear and convincing to overcome the presumption in favor of the validity of the judgment described in the petition and of the correctness of the transcript of the justice who rendered that judgment and of the officer’s return of service of summons in the action before said justice, which return shows that George Kibby was duly served with summons. While the transcript from the justice’s court is in a condition which may create some suspicion that it is not a crue and correct transcript of the proceedings in that court, yet that suspicion is not sufficient to invalidate the judgment. There is no further evidence in support of Kibby’s claim that he was not served with a summons except his own testimony to the effect that he was not so served and that he was not at/ the time of the action indebted to the Smith Company and never had been indebted to that company. It is unnecessary to say that the judgments of courts may not be nullified by the mere oral testimony of the judgment debtor to the effect that he was never served with summons in the action in which the judgment was rendered.

A decree may be entered in favor of the Lou D. Smith Company as prayed for in its petition.

MAUCK, PJ, MIDDLETON and BLOSSER, JJ, concur.  