Hutchens v. Latimer

5 Ind. 67

Opinion

Stuart, J.

Assumpsit by Latimer, Jenkins, & Co., against Hutchens and others, on a promissory note. Upon, the calling of the cause, the defendants filed their affidavit, the main point of which was, that the only service of summons was by copy; that but one copy was left at the house where two of the defendants resided, one of them as a boarder in the family of the other; setting out such copy in hcec verba. Such is also the substance of the sheriff’s return on the summons, as appears elsewhere in the record. The defendants thereupon moved the Court to set aside the service, and continue for process, &c., which was overrule(j) an(j -(¡he defendants excepted. On failing further to appear, they were defaulted, and judgment was rendered for the amount of the note and interest.

J. G. Marshall, for the plaintiffs.

Two objections are taken to these proceedings. One, that the name of the attorney was not indorsed on the summons

(1); the other, that one copy for two defendants was not a sufficient service (2).

As to the indorsement of the attorney’s name, the statute is express, that it shall be done. R. S. 1843, p. 624. The object is, that the defendants may know whom to treat as such in matters of notice or payment. Where the objection is thus made to the process, without appearance waiving any irregularity, it must prevail. But this point does not appear to have been urged below.

The second objection is equally fatal. The copy is substituted for the reading. As the reading should be to each (defendant, they should severally have a copy left at their usual place of residence. That two defendants reside at the same place, does not change the reason for two copies, .one for each defendant.

If .the service by copy be not strictly guarded, it might lead to great abuse.

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

The R, S. 1852 do not require that the attorney’s name shall be indorsed on a summons.

The R. S. 1852 contain the same provision in relation to service of a summons by copy, as the R. S. 1843. 2 R. S. 1852, p. 35.