Dobbins v. Thompson

4 Mo. 118

• Court: Supreme Court of Missouri
• Decided: August 15, 1835
• Status: Published

Opinion

Opinion of the court.delivered by

McGirk

* J.

Thompson brought a suit of forcible entry and detainer before two justices of the peace to recover possession of a lot of land — the plaintiff Thompson had a judgment — Dobbin took out a certiorari from the office of the circuit court of Howard

_ _ When' the cause was brought into the circuit court Thompson moved the court to dismiss the suit because he had not been served with a notice of the writ as the law requires. The case was dismissed, and this is the error assigned by the plaintiff in error.

It appears that a notice had been served by the sheriff on one Charles French and the question was whether the service, was good or not. The 34th section of the act regulating practice of law, R. C. 630 says, notices in the progress of a cause may be served by the sheriff in the same manner a writ of summons is required to be served. The 5th section of the act points out the mode of serving a summons.

The sheriff returns that he served the notice on Charles French who wras at the house of Thompson, and had been for several years a boarder in the family, and he - - J J ed him to be a member of Thompson’s family &c. When this ease was before the court on the first argument we thought the return good enough; but now we think oth-wise.

The return shew-edit was served ered a member of the family — parol fered"^ shewthat F was a member of the family— dioulíhave'been received if sary — but wasun-not supply the 1 other defect, — & the rejection of pfníp'pnf ror. ^

The 5th section says the service of a summons shall be by reading the writ &c. to the defendant or by leaving a true and attested copy of the same at the dwelling house or place of abode of the defendant, with some white person of the family above the age of 15 years &c.

The objection now taken to the service of the notice is that Charles French does not appear to be a white person of the family. The law was not willing to have this copy left with a black person, it must be left with a white person. The return should shew this which it does not do. The service is therefore bad. The plaintiff in the certiorari offered evidence to prove that French was a or member of Thompson’s family: this we think might have been done if necessary. This evidence was objected to and excluded by the court. But this exclusion *s a matter of no consequence as he offered none and gave none, to shew Charles French was a white man — without which his case would still have been bad.

^ evidence had been given it would have proved in no more than what the return proved already, and then the case would have been just where it is. The Party seems to have only directed his proof to fill up the defect as to C. F. being a member of the family, the party to have thought this was the only defect; now it may that the party had no evidence as to the fact whether C. F. was white or not. If he had offered that, and it had been rejected then the judgment would have been reversed. It is argued that the court refused to hear evidence: we do not so understand it.

There is no error in the judgment of the circuit court —it is therefore affirmed.

Judge Wash absent.