Conwell v. Atwood

Smith J.

This was an action of debt by Atwood and Co., against Conwell. By a bill of exceptions, it appears that, on the 13th of February, 1849, at the February term of the Franklin Circuit Court, said term having commenced on the 5th of that month, on the cause being called for trial, the defendant moved to set aside the sheriff’s return to the summons. That return was that the sheriff had duly served the writ, by leaving copies at the boarding house and store of the defendant, on the 23d of January,

1849. In support of the motion, the defendant filed an affidavit, stating, that on the 20th of January, 1849, he went to Cincinnati, Ohio, upon necessary business, and necessarily remained away from his usual place of business, until the 1st day of February, 1849, and that he was not advised of the service of a summons in this cause, *290 by leaving a copy at his place of residence, until the 5th of February, 1849.

J. D. Howland, for the appellant. G. G. Holland, for the appellees.

This motion was overruled, and the plaintiff had judgment nil dicit.

The motion to set aside the sheriff’s return, was properly overruled. The service by leaving a copy at the defendant’s place of residence, was authorized by the statute. R. S. p. 674, s. 23. The fact that the defendant was absent in another state, and was not actually notified of the suit until the first day of the term at which the summons was returnable, affords no reason for setting aside the return. There might be cases in which a continuance would be proper, when a defendant should not be really notified by such a service of process in time to prepare a defence, but we can perceive no ground whatever for the motion made on this occasion.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.