Carey v. Butler

11 Ind. 391

• Court: Indiana Supreme Court
• Decided: December 20, 1858
• Status: Published

Opinion

Hanna, J.

This was a suit upon a note. The summons was dated the 22d day of December, 1856, and by it the sheriff was commanded to summon the defendants to appear, &c., “ on the second day of the next April term” of said Court. The January term intervened, at which the defendants were defaulted, and judgment entered against them.

The process was served on the appellants on the 24th of December, 1856. The January term commenced on the first Monday, being the 5th day of the month, 1857. Consequently, the service was a sufficient length of time before the term to authorize the default, if, by the terms of the writ, such proceeding could be had at that term of the Court.

In Shirley v. Hagar, 3 Blackf. 225, it was decided that a writ issued on the 19th day of January, 1832, returnable on the Wednesday after the last Monday in August, then next, was a nullity; because, by the statute then in force, the writ was returnable on the first day of the next term after it issued, and the February term intervened, &e.

E. Dumont and O. B. Torbet, for the appellants.

The process, according to this authority, was a nullity, and, consequently, no judgment rendered by default could be legal.

Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.