Fisher v. Fredericks

33 Mo. 612

• Court: Supreme Court of Missouri
• Decided: March 15, 1863
• Status: Published

Opinion

Dryden, Judge,

delivered the opinion of the court.

The law permitting the notification of an absent defendant by delivery of a copy of the petition with a notice of the suit, contemplates service of the copy and notice at some place without this State, but within the United States or their Territories ; and in order to warrant the court in taking jurisdiction of the defendant, It ought to appear affirmatively by the affidavit required that the service was had at a place within the limits prescribed in the act. (R. C. 1855, § 18, p. 1225.) In this case, it neither appears inferentially nor by direct averment in the affidavit, where the service on Morris was had. For aught that can be seen, the service may have been made in Missouri or in Canada, and if in either it was bad.

The return was for this reason insufficient, and the court ought to have set aside the judgment. Let the judgment be reversed and the cause remanded ;

the other judges concurring.