Straus v. Schisgall & Kienzle Co.

The question to be determined upon this appeal is not whether the court below had authority to vacate a judgment absolutely, where no personal service of the summons has been made upon the defendant, upon a motion and without a trial of an issue raised upon that question, but whether or not the person upon whom it is not disputed that personal service of the summons was made was the president of the defendant corporation at the time of such service.

Upon this question, the proof submitted is wholly insufficient to show that prior to the service of the summons he had resigned that office, which it is conceded he once occupied. The most that appears is that he had signed what the affiants in the moving, affidavits state was a “formal resignation,” giving its form. What became of this paper does not appear; non constat it may have been lost, destroyed, or withdrawn.

Order reversed, with costs, and judgment reinstated.