
    ROY VAUGHAN, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, and T. H. Mastin & Company, a Corporation, Respondents.
    (217 N. W. 167.)
    Evidence — sheriff’s return hest evidence of sendee of process.
    The sheriff’s return is the hest evidence of the service of process, and where there is no return, no application to the court to amend a return or to make and file a return, and no offer to prove service of process by the officer, secondary evidence is not admissible.
    Evidence examined and is held insufficient to support a judgment for damages.
    Note. — As to sufficiency of evidence to support sheriff’s return of service of process, see 21 R. C. L. 1320.
    Evidence, 22 C. J. § 1287 p. 1009 n. 92. Replevin, 34 Cyc. p. 1605 n. 69.
    Opinion filed December 29, 1927.
    
      Appeal from the District Court of Ward County, Moellring, J.
    Affirmed.
    
      G. W. Twiford and Dudley D. Nash, for appellant.
    
      McGee & Goss and B. H. Bradford, for respondents.
   Burice, J.

This is an action to recover on an alleged wrongful taking in an action in Claim and Delivery of an automobile, and upon an undertaking in said action.

At the close of plaintiffs testimony the trial court on motion dismissed the action upon the grounds that the plaintiff’s testimony failed to show that the automobile had been taken from his possession and failed to show any damages, and the plaintiff appeals.

It is the contention of the appellant that the evidence makes out a prima facie case of both seizure and damages, first, “the answer in the instant case admits that there was an action concerning an automobile wherein the defendant, T. H. Mastin & Co. a corporation was plaintiff, and one Boy Vaughan, the plaintiff herein, was defendant, for the possession of a Cadillac automobile, and after the commencement of said action, the said Boy Vaughan against whom said action was begun admits, agreed and conceded, that said automobile was a stolen car originally belonging to the defendant T. H. Mastin & Co., and stolen from said corporation, and the said Boy Vaughan paid to the defendant T. II.. Mastin & Co. by payment to its .attorney of record in said action, W. II.. Sibbald, the sum of $1,300, for the purchase price of said car and in. settlement of said action, and did release and discharge said bond of’ this defendant U. S. Fidelity and Guaranty Company.” Because of’ this statement in the answer, appellant claims that the defendant admits, the taking of the automobile. There is no allegation in the answer that, the automobile was taken in an action in Claim and Delivery, the allegation is, that there was an action between the parties concerning an automobile or for the possession of an automobile. There is no admission, in the answer that the action was one claiming the right to the immediate-delivery of the automobile, and no allegation sufficient to show a seizure.

The plaintiff offered in evidence the files in the case of Mastin &■ Company v. Bichard Vaughan, John Doe, and Bichard Boe, which purported to be an action in Claim and Delivery. The sheriff’s return blank in Claim and Delivery was filled out, but never signed, and there-was no return on summons or complaint. The said record was first admitted, but later stricken out as not tbe best evidence, for tbe reason, that tbe sheriff's return bad never been executed. Tbe appellant sought to prove seizure by portions of the deposition of Mr. Sibbald which had been taken in tbe former action, and to which the court sustained an objection that it was not tbe best evidence.

During the trial the court asked tbe plaintiff tbe following questions. “Were you here at the time Mr. Vaughan?” (The time the former action was commenced.) Ans. “I was out of town and when I came back my car had a log chain on it in tbe garage. I had locked tbe car in Mr. Smith’s garage, and when I came back it bad a log chain on it.” Ques. “That is .all you know about it ?” Ans. “Yes sir.” Tbe plaintiff was called for cross-examination and testified. Ques. “Didn’t you afterwards sell tbe car ?” Ans. “My partner afterwards bad possession of it Mr. Bunn.” Ques. “But you had possession of it frequently afterwards ?” Ans. “I drove it frequently afterwards.” Ques. 'And you personally took it out of Mr. Smith’s garage after that?” Ans. “I couldn’t say.” “We bad four or five cars there and I might have went and took it out. I took any ear.” Ques. “And you bad possession of that car many times after that?” Ans. “I drove it several times afterwards yes.” Ques. “Mr. Vaughan you employed Mr. Twiford as your attorney in reference to tbe taking of that car from you?” Ans. “Yes sir.” Ques. “And he was authorized to deal and transact business for you with respect to it ?” Ans. “I hired Mr. Twiford to take care of that particular case when they brought this action.” Ques. “And didn’t Mr. Twiford attend to tbe subsequent business of turning over a check?” Ans. “Yes sir.” “And did that With your authority ?” Ans. “No tbe check wasn’t mine that he turned over.”

It appears from tbe record that E. P. Schofield was sheriff at tbe time of the bringing of tbe first action and Chester Jacobson was bis deputy. They were not called to testify as to tbe service of the papers and no application was made to tbe court to amend or to file a return of tbe sheriff. Testimony of tbe officer serving the papers, if tbe papers wore served would of course, have been tbe best evidence and no doubt, if they bad applied to tbe court for leave to amend tbe return it would have been granted, and the service of the papers could have been proved, if they had been served. There was no error in striking out the record, it was not the best evidence and no foundation had been laid for its introduction. 2 Jones, Ev. 2d ed. § Y59.

We are of the opinion also, that the plaintiff did not show any damages. According to his own testimony he kept the car in Smith’s garage and when he returned, it was there. It had a log chain on it, but there is no evidence that the log chain locked the car in any way or that he couldn’t have taken his car. He says, “I had the car locked in Smith’s garage and when I returned it had a log chain on it, and that’s all I know about it.” Tie is asked if he did not afterwards sell the car, and he evades the question by saying, “Afterwards I drove it.” Ques. “You afterwards had possession of it? ” Ans. “My partner afterwards had possession of it.” Ques. “And you personally took it out of Smith’s garage ?” Ans. “I couldn’t say, we had four or five cars in there and I might have went and took it out.” “I took any car.” “I drove it several times afterwards” (meaning after the commencement of the other action).

If the car had been seized it got back into the possession of the plaintiff and his partner, and there is no evidence that the sheriff or the plaintiff ever regained possession of it.

He admits that he employed Twiford to look after the first case, and that Twiford did turn over a check in connection with the case. He says the check didn’t belong to him but he employed Twiford to act for him, and it doesn’t make any difference to whom the cheek belonged after it was turned over to Twiford for the plaintiff Yaughan.

There was not sufficient evidence either of the service of the process or of the damages to sustain a judgment and the judgment of the trial court is affirmed.

Bjruzell, Oh. J., and Burr, Nuessle, and Christianson, JJ., concur.  