Robertson v. Roe

U.S. Circuit Court for the District of Ohio

Robertson v. Roe

20 F. Cas. 950, 5 McLean 459

CourtU.S. Circuit Court for the District of Ohio

DecidedApril 15, 1853

StatusPublished

This text of 20 F. Cas. 950 (Robertson v. Roe) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Robertson v. Roe, 20 F. Cas. 950, 5 McLean 459 (circtdoh 1853).

Pincite

Opinion

OPINION OF

THE COURT.

This is a motion to dismiss the suit, as the process was not properly served. The charter of the defendants requires that the first process, in all suits against the town shall be a summons, an attested copy of which shall be served on the recorder, at least ten days before the return. No such copy appears to have been served in the present case. A copy of the declaration was served, as is usual in actions of ejectment, and a notice to the person in possession. We are bound by the charter to give the notice as required, but the case before us is not strictly provided for by the charter. The service has been made, according to the ordinary forms of the action of ejectment. If we bring the ease before us, within the charter, by construction, a technical application of the charter can not be expected. To look at the substance and give a liberal construction to bring the case within the charter, and then apply the rule technically would be improper. We think the service is sufficient. The sendee of process in'this action is governed by established rules, and these are different from a mere summons. The copy of the declaration with the notice appended was sufficient service. The motion to dismiss is overruled.

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OPINION OF

THE COURT.

This is a motion to dismiss the suit, as the process was not properly served. The charter of the defendants requires that the first process, in all suits against the town shall be a summons, an attested copy of which shall be served on the recorder, at least ten days before the return. No such copy appears to have been served in the present case. A copy of the declaration was served, as is usual in actions of ejectment, and a notice to the person in possession. We are bound by the charter to give the notice as required, but the case before us is not strictly provided for by the charter. The service has been made, according to the ordinary forms of the action of ejectment. If we bring the ease before us, within the charter, by construction, a technical application of the charter can not be expected. To look at the substance and give a liberal construction to bring the case within the charter, and then apply the rule technically would be improper. We think the service is sufficient. The sendee of process in'this action is governed by established rules, and these are different from a mere summons. The copy of the declaration with the notice appended was sufficient service. The motion to dismiss is overruled.

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Bluebook (online)

20 F. Cas. 950, 5 McLean 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-roe-circtdoh-1853.