McCall v. Butterworth

8 Iowa 329

• Court: Supreme Court of Iowa
• Decided: April 14, 1859
• Status: Published

Opinion

Stockton, J.

The motion to set aside the petition appears to have been treated by the parties, and by the court, as a demurrer; and as no question has been made upon the regularity of this practice, we proceed to consider the cause, without expressing any opinion, whether or not, the motion was properly allowed, in this case, to take the place of a demurrer to the petition.

The district court sustained the motion, and set aside the petition, for the reason that no service of the subpoena had been made upon the defendant, which he was bound to obey. The plaintiff avers that the subpoena was legally and duly served, on the defendant by the sheriff of the county. Whether it was so served, or not, was a matter of proof for the plaintiff on the trial. The subpoena having been made a part of the petition, and attached thereto, the defendant relies upon the return of the sheriff, indorsed thereon, as showing that the service was not sufficient. The return, even if insufficient, is not conclusive on the parties. The plaintiff was entitled to show, on the trial, as a matter of fact, independent of the officer’s return that the writ was duly and legally served, as alleged. It is not indispensably necessary that the return of the officer, should show that a copy of the subpoena was delivered to the witness. This may be shown by other testimony, and is only required to be shown to render the party liable for contempt of court, in not obeying the writ.

The objection that the subpoena does not state the time and place, when and where the attendance of the witness is required, is not well taken. This information, we think, is conveyed with sufficient distinctness. Where the witness is a party to the suit, in which his attendance is required, no technical objection to the regularity or sufficiency of the subpoena, should be suffered to prevail.

Judgment reversed.'