See, also, State Ins. Co. v. Waterhouse (Iowa) 43 N.W. 611. This court in Ray v. Harrison, 32 Okla. 17, sustained the admissibility of extrinsic evidence to contradict an officer's return of personal service, and likewise reaffirmed that doctrine in Jones v. Jones, 57 Okla. 442, 154 P. 1136. In neither of those cases, however, does it appear that the judgment involved contained any recitation of service.
It is true such evidence must be clear and convincing to overcome the presumption of the truthfulness of the return. Mayhue v. Clapp, 128 Okla. 1, 261 P. 144, 146; Jones v. Jones, 57 Okla. 442, 154 P. 1136. The evidence, in support of the motion to quash plainly shows that Henrietta Funk was not a member of the defendant's family; the defendant was a widower, residing at the place where the summons was delivered, and that his mother who maintained her permanent home in the state of Pennsylvania usually visited in his home during the winter months, and then would return to her home in Pennsylvania, and that she had never had any intention of establishing a home in the same household with her son.
Such rule, however, is not in force in this state, but a more liberal rule to the effect that, while not conclusive, yet it is prima facie evidence of its truthfulness and it requires strong and convincing proof to overcome it. Ray v. Harrison, 32 Okla. 17, 121 P. 633. In Jones v. Jones, 57 Okla. 442, 154 P. 1136, this court, in discussing this question, said:“This is a just and a wholesome rule, for under it, an officer, by his return, cannot make that which is false true. Where a judgment, regular upon its face, based upon an officer's return showing personal service, is sought to be vacated and set aside, public policy demands that it should not be overcome, except upon clear and convincing proof that the return is false.”
Based upon the evidence (affidavits) outlined above, the trial court sustained defendant's motion to quash. This matter comes within the rule in Oklahoma that a sheriff's return on a summons showing service, while not conclusive, is prima facie evidence of its truthfulness, and strong and convincing proof is required to overcome it. A A Tool Supply Company v. Gray, 192 Okla. 657, 140 P.2d 926; Jones v. Jones, 57 Okla. 442, 154 P. 1136. The same rule applies to the service of summons in a case where defendant is not personally served, but the summons was served by leaving a copy for defendant at his usual place of residence with a member of his family over fifteen years of age, as this is one of the means by which service of summons may be had. Rowe v. Rowe, 175 Okla. 271, 52 P.2d 869; 12 O.S. 1961 § 159[ 12-159].
If there is evidence reasonably supporting the trial court's finding that proper service was obtained, and such judgment is not against the clear weight of the evidence, the same will not be disturbed on appeal. Jones v. Jones, 57 Okla. 442, 154 P. 1136. In the instant case there was considerable evidence both to affirm and to deny proper service.
The real question is whether the evidence produced by the movant was such that it required the opposite judgment as a matter of law. Where a judgment, regular on its face, is sought to be vacated on the ground that the summons was not served upon the defendant as stated by the officer in his return, the proof must be clear and convincing. Jones v. Jones, 57 Okla. 442, 154 P. 1136; Rowe v. Rowe, 175 Okla. 271, 52 P.2d 869. Since a general appearance in court by an attorney, who is an officer of the court, usually has the same effect as the serving of summons, there is no reason why the same rule should not apply. In fact we find that in those states where the question has arisen it has been held that the presumption of authority of the attorney to appear for his client may afterward be overthrown only by clear, cogent, and convincing evidence.
The court, after hearing the evidence, found that the motion should be overruled. This court held in the case of Jones v. Jones, 57 Okla. 442, 154 P. 1136: "Where a judgment, regular upon its face, based upon an officer's return showing personal service, is sought to be vacated and set aside, public policy demands that it should not be overcome, except upon clear and convincing proof that the return is false. * * *
As said in Randall v. Collins, 58 Tex. 231, 'It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony.' See, also, Quarles v. Hiern, 70 Miss. 891, 14 So. 23; Hunt v. Childress, 5 Lea. (Tenn.) 247; U.S. v. Gayle (D.C.) 45 F. 107; Driver v. Cobb, 1 Tenn. Ch. 490; Ray v. Harrison, 32 Okla. 17, 121 P. 633, Ann. Cas. 1914A, 443; Jones v. Jones, 57 Okla. 442, 154 P. 1136; also annotations in 124 Am. St. Rep., beginning on page 770. See, also, Kempner v. Jordan, 7 Tex. Civ. App. 275, 26 S.W. 870, and Becker v. Becker (Tex. Civ. App.) 218 S.W. 542, holding the testimony of the officer must be met by the oath of two witnesses or of at least one with strong corroborating circumstances.
Section 242, C. O. S. 1921, provides for the voluntary appearance of a defendant, and the same is equivalent to service of summons by an officer. Although the return of service of summons by an officer is not conclusive, yet it is prima facie evidence of its truthfulness and requires strong and convincing proof to overcome it. Ray v. Harrison, 32 Okla. 17, 121 P. 633; Jones v. Jones. 57 Okla. 442, 154 P. 1136. Where a judgment has been rendered against a party who has filed a written waiver of the issuance and service of summons and, entry of appearance as was done in the instant case, it should not be vacated on the grounds relied on herein unless the evidence is strong and convincing.
Such rule, however, is not in force in this state, but a more liberal rule to the effect that, while not conclusive, yet it is prima facie evidence of its truthfulness and it requires strong and convincing proof to overcome it. Ray v. Harrison, 32 Okla. 17, 121 P. 633. In Jones v. Jones, 57 Okla. 442, 154 P. 1136, this, court, in discussing this question, said: "This is a just and a wholesome rule, for under it, an officer, by his return, cannot make that which is false true. Where a judgment, regular upon its face, based upon an officer's return showing personal service, is sought to be vacated and set aside, public policy demands that it should not be overcome, except upon clear and convincing proof that the return is false."