Dutton v. Hobson , 7 Kan. 196 ( 1871 )

The opinion of the court was delivered by

Kingman, C. J.:

The judgment in this case was on default, and no exceptions were taken. Two errors are alleged : First, the summons was not served before the return-day: Second, the action was against L. J. Dutton ; the summons is returned served on L. A. Dutton.

The summons was issued on the 26th day of March, to the sheriff of Miami county, and was served on the 5th day of April. This was the return-day, while the statute limits the service to “ any time before the return-day.” §64, civil code. The statute is positive. ¥e cannot construe it away, nor enlarge it. In Meisse v. McCoy’s Adm’r, 17 Ohio St., 229, such a service was held voidable, an irregularity that could be corrected on motion, or waived by answer. In our opinion it is a defect that can be corrected on error. It is an error that affects the substantial rights of the defendant, as it gives him one less day to answer than the law allows. It is not a defect that makes the judgment void; and if a party permits it to go unchallenged till he has lost the right to correct it, by reason of the lapse of time, the judgment would be binding on him.

The second objection is not tenable when presented for the first time on error. If it could. be taken advantage of at all, it must be in the court below. . Such was always the law. 1 Chitty’s PL, 244, 248. We are not to be understood as deciding that there is any defect existing. If the right party was,served with the summons, the most that could be done, would be to allow the sheriff to amend. The law knows but 'one Christian name in its proceedings; and if there are two of that name, it must be made to appear on issues properly made up.

For the. error first alleged, the judgment is reversed, and the cause remanded for further proceedings.

All the Justices concurring.