Rutherford v. Moody

27 S.W. 230, 59 Ark. 328, 1894 Ark. LEXIS 66

• Court: Supreme Court of Arkansas
• Decided: June 23, 1894
• Status: Published

Opinion

Hughes, J.

The appellant sued the appellee before a justice of the peace, and the summons issued by the justice was served by the appellant’s attorney. Moody moved to quash the service upon him, because made by appellant’s attorney. The motion was sustained, and thereupon the cause was dismissed as to Moody, who then tendered to the appellant the amount of his debt, which appellant refused to receive, which Moody thereupon paid into court. The appellant appealed to circuit court, where appellee renewed the motion to quash, which was sustained, and he appealed to this court.

i. service of process by attorney.

The service of process, in a suit, should be made by . . an mditterent person, and not by a party, or one inter- • ested in the suit, as attorney, or otherwise. Weeks on Attorneys, sec. 122; Ingraham v. Leland, 19 Vt. 304; White v. Haffaker, 27 Ill. 349.

2. As to appearance.

There does not appear to have been any intention upon the part of appellant to appear in the action, and his tender and subsequent payment of the debt into court, was not an appearance to the action.

The judgment is affirmed.