Hammond v. Olive

44 Miss. 543

• Court: Mississippi Supreme Court
• Decided: October 15, 1870
• Status: Published

Opinion

SlMRALL, J.:

It is complained in this court, that there was not a sufficient service of the writ on Hammond. It has been established by a number of cases in this court, that the return of the officer on the summons must show affirmatively a compliance with the requirement of the statute. If practicable, he must make personal service, and before he can resort to the secondary mode' by leaving a copy at the domicile of the defendant, be must declare in his return, that the party “ could not be found.” Foster v. Simmons, 40 Miss., 585, citing the cases, and many others subsequent, not necessary to be referred to. To make a service by “ copy at the defendant’s usual place of abode” complete, the return must show that every condition of the statute has been complied with. 1st. It must declare that the defendant “ could not be found2d. That the copy was left with the wife, or some free white person above sixteen years of age ; 3d. If there be no free white person there willing to receive the same, then the copy may be left at some public place at the dwelling house. The statute regards the three modes of service in the order named, as gradations. The second cannot be adopted, if the first can be made, nor the last, until both the others have failed, and the officer should manifest, if he adopts the last mode, by his indorsement on the writ of “ his acts under it,” that he could not make personal service because the defendant could not be found, that he did not leave a copy with the wife, or some other person, etc., because no such person -was at the “abode” or'would accept the copy. We have been thus minute in the exposition of this subject (although it would seem to be unnecessary), in the hope that the officers charged with this duty, may be clearly instructed as to its performance.

There are two specific imperfections in this return of the sheriff: 1st. “ W. J. Hammond,” with whom the copy was left, is not said to be a “ free white person,” whatever may be thought of the necessity of a change of the statute in this particular, because of the altered condition of the country. It is the simple duty of this court to expound the law as it is written — referring, where it properly belongs, modifications and amendments to legislative wisdom. The statute of Illinois is in its text almost identical with ours, “ the copy may be left at the usual place of abode, with some white person of the family,” etc.,' is its language. In Cost v. Rose, 17 Ill., 277, the return omitted to describe the person with whom the copy was left as “ white,” this was held to be insufficient. In Thrumond v. Griggs, 2 Scamm., 366, the return was defective because the “ person ” was not said by the officer to be “ of the family.”

2d. This return is defective because the. officer does not negative his ability to make personal service. The words, “ he being absent,” in their connection with the context, import that the defendant was not “ at home” — was absent from “ his place of abode.” This may be true, but it does not follow that because of such absence, “he could not be found,” he might have been at his nearest neighbor, or at the county town, and it might have been, entirely feasible for the sheriff to have “ found him.” The words “ he being absent,”' are not the equivalent of “ could not be found.” The officer is guilty of a palpable violation of duty under the law, to substitute the secondary service by copy at the “ abode,” if he could with the use of diligence make personal service. Nor do we doubt his liability to an action for damages, if it was in his power to make a personal service, and he failed to do so, and thereby injury resulted to the pláintiíf.

The judgment is reversed and cause remanded.