Hodge v. Swasey , 30 Me. 162 ( 1849 )

Shepley, C. J. orally.

—■ The complainant alleges that his goods were attached, and that he was summoned to appear at the Court. The facts show there was no service on Kim, unless his procurement of a copy of the writ, would make one. Rev. Stat. chap. 114, §§ 23 and 24, provides that a writ may be framed to attach the goods, or it may be by original summons, with an order to attach. But in either case, a separate summons must be served. The writ in this case was in common form of a writ of attachment. It was not served. The officer was bound to give the copy, which the petitioner procured. It was no act of fhe respondents. There was then no service,, nor was there any attempt to make one. The question then is, whether, when there has been no service, a defendant’s complaint for costs can be sustained. We think it cannot be-done. When such a complaint is made, the proper evidence of service should be presented. The complainant’s remedy is. by another, and perhaps, more efficacious procedure. The complaint is dismissed.

Harley moves for cost against the complainant.

Per Curiam. — Costs are allowed, of course.