Smith's Administrator v. Rollins

Soott, Judge,

delivered the opinion of the court.

The defendant Rollins being impleaded with others, a judgment by default was taken against him on a service of process which was in the words that follow: “ I do certify that I served the within petition and writ on the within named David E. G-. Rollins by delivering a copy to the wife of the said D. E. G-. Rollins, over sixteen years of age, on this 6th day of September, 1856, in Moniteau county.” The statute directs (R. 0. 1855, p. 1223) that one of the modes of service of a summons shall be by leaving a copy of the petition and writ at the usual place of abode of the defendant, with some white person of the family over the age of fifteen years. It will thus be seen, upon a comparison of the language of the return with that of the statute, that the return is defective in not stating that the copy was left at the usual place of abode of the defendant. This requirement of the law is essential to the validity of the service. A person may be a member of a family and yet a long time absent from the abode of that family, which might prevent the head of it from receiving the notice. Though the defendant was present in court, yet his appearance was not entered on record, and he had a right at the time to object to the judgment by default as he had not been served with process the length of time necessary to entitle the plaintiff to a judgment against him. The case of Whiting & Williams v. Budd, 5 Mo. 443 , was correctly decided ; but the dictum as to the length of time that should intervene between the appearance and the entry of the judgment by default can hardly.be reconciled with the statute, which prescribed the notice a party should have before he should be required to plead an action.

*411 As the judgment was irregularly entered, the defendant bad a right to have it set aside without the imposition of any terms. He was not in default — was- seeking no favor from the court; and nothing could be required of him as a condition to the setting aside of the judgment.

There is nothing in the objection that the motion was made in the name of Rollins alone, without the concurrence of the other defendants. This was at most a clerical error, if it was error at all, as the entry responding to the motion would have been in the name of all the defendants. A judgment being an entire thing, can not be reversed in part; but the the whole should be set aside where there is error or irregularity in any part of it. (Rush v. Rush, 19 Mo. 441 .)

If the fact warranted such a course, it is strange the plaintiff did not call upon the sheriff and have him amend the return to the writ, which would have deprived the defendant of the benefit of his motion.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded;

Judge Leonard absent.