Kaufman v. Sampson

9 Ind. 520

• Court: Indiana Supreme Court
• Decided: December 1, 1857
• Status: Published

Opinion

Stuart, J.

— -Suit on a promissory note by Sampson and Andrews against Kaufman and another, and judgment by default. The writ and sheriff’s return are set out in the record. See The New Albany and Salem Railroad Co. v. Welsh, at the present term

(1).

Several errors are assigned, but only two are pressed in argument:

1. That the process is made returnable to the second day of the term.

2. That it does not appear affirmatively by the record that the defendants below were residents of Grant county.

J. Brownlee and H. Kelly, for the appellants. A. Steele and H. D. Thompson, for the appellees.

The default is taken on the second day of the term, the day on which the summons is made returnable.

The statute is explicit: “ Every action shall stand for issues and trial at the first term after it is commenced, when the summons has been served on the defendant ten days, or publication has been made sixty days, before the first day of the term.” 2 R. S. p. 107, s. 315.

The summons was served on the 20th of September, ten days before the first day of the term, which was on the first day of October. The summons commands the defendants to appear on the second day of the term, to be held on the first Monday of October, 1855, &c.

If there was any defect, the process was amendable below on motion, and will be regarded as amended here.

There is nothing in the second error assigned.

Per Curiam.

The judgment is affirmed, with 5 percent. damages and costs.

Ante, 479.