Bryant v. State ex rel. Quigley

5 Ind. 245

• Court: Indiana Supreme Court
• Decided: June 9, 1854
• Status: Published

Opinion

Davison, J.

Debt by the state on the relation of Quigley against Bryant, a surety upon an administrator’s bond. The following is the return of the sheriff to the original process in the cause: “ Served this writ on the within named Absalom Bryant, by leaving a copy at his last place of residence. January 23,1852.” Bryant having failed to appear, judgment was taken against him by default, and a jury was impanneled to assess the plaintiff’s damages. Final judgment for the plaintiff.

The objection to these proceedings is, that the sheriff’s return was not sufficient to authorize the default; that leaving a copy of the writ at Bryants last place of residence was not good service.

This is a mistake. A statute in force when this suit was commenced, provides, that when a summons is issued, “it shall be served either personally on the defendant or by leaving a copy thereof at his usual or last place of residence.” R. S. 1843, c. 40, s. 23. The return is in accordance with the statute.

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