Dutton v. Hobson

1. Summons — Service of. The service of a summons on the return-day is not authorized by law, and a judgment rendered on default on such a service will be reversed, at the instance of the judgment-debtor, if he seeks relief in proper time. 2. Practice — Amendment. No error will be presumed from the mere fact that the officer’s return shows that a summons issued against “L. J. D.” was served on “ L. A. D.; ” and certainly none which can be taken advantage of for the first time on error. If the right party was in fact served, the most that, could be done would be to allow the officer, on motion in the court below, to amend his return.

Error from, Miami District Court. On the 26th of April, 1870, Hobson filed his petition and precipe in the office of the clerk of the district court, for the commencement of an action against Hutton to recover possession of a certain tract of land. A summons was issued and made returnable on the 5th day of May. The summons was issued against L. J. Dutton; and the sheriff’s return shows that he served it on the return-day, (April 5th,) and.by delivering a copy to' “ L. A. Dutton.” The defendant failed to appear, and after the answer-day had passed plaintiff moved for and obtained judgment upon defendant’s default. To feverse this judgment the defendant brings the case here by petition in error. 1. The defendant was not served in any manner provided for by the code §§ 64, 67, 72, 73,74, 75, 76, Gen. Stat., pp. 642, 643. Service on L. A. Dutton is no service on L. J. Dutton, the defendant. The court obtained no jurisdiction of the “person” of “ the defendant” by the service made on another party. Elliott v. Holmes, 1 McLean, 466. 2. The service was not in time. Time is an essential part of the service; and the return must show affirmatively that the service was within the time allowed by law in order to support a judgment by default. .Gen. Stat., p. 642, §65; Ogle v. Coffey, 1 Scam., 239; Garnett v. Phelps, id., 331; Calhoun v. Matlock, 3 Miss.,. 70. Service of summons on the return-day thereof is not good. It is no service in law. The writ has expired by limitation of time and has lost its vitality. Small v. Edrick, 5 Wend. 137; O’ Conner v. Towns, 1 Texas, 107; Temple v. Carstens, 1 G. Greene, (Iowa,) 492; Columbia Turnpike Co. v. Haywood, 10 Wend., 422; Morrison v. Gaillard, 25 Miss., 194; Bario, v. Abbe, 16 Ohio, 408; Hitchcock v. Haight, 2 Gilm., 604. 3. To support, a judgment by default the return must show a strict compliance with the statute, in regard to service. Parks v. Weems, 4 Eng., 439; Repine v. McPherson, 2 Kas., 340; Sheldon v. Comstock, 3 K. I., 84; Cookv. McDoel, 3 Denio, 317. 4. The record shows that the district court erred in rendering a judgment against the plaintiff in error (defendant below,) and that error is one for which this court must reverse the judgment.