Searles v. Hardy , 1883 Me. LEXIS 159 ( 1883 )

Walton, J.

The writ in this case is dated September 8, 1882. It was returnable to the Supreme Judicial Court to be held at Farmington on the fourth Tuesday of the same month. The defendant is described in the writ as an inhabitant of the state, residing in the same town in which the court was to be held. No reason is apparent upon the face of the writ why it should not have been served upon the defendant in the ordinary mode, and none has been stated. It was not so served; and the action was entered in court without any service of the writ whatever. No property was attached upon it, and no service of it was made, or, so far as appears, attempted to be made, upon the defendant; but, instead, an order of notice was obtained from the court returnable to the next March term. This order having been complied with, the defendant appeared specially on the first day of the term, and moved that the action be dismissed for the reason that the service was not legal and the action not properly before the court; and the question is whether the motion should not have been sustained. We think it should. An action such as this was can not properly be entered in court without any service of the writ Avhatever, or any attempt to serve it, if the defendant is an inhabitant of the state, and no property has been attached upon the Avrit. If property has been attached upon the writ, or the service is defective without the fault of the plaintiff or his attorney, the action may be entered and an order of notice obtained. R. S., c. 81, § 21. But when no property is attached, and no service of any kind attempted, the action cannot properly be entered and an order of notice obtained. And if such an order is improvidently made and complied with, the action will nevertheless be dismissed on the defendant’s motion, if the motion is seasonably made. Briggs v. Davis, 34 Maine, 158. In this case, the motion Avas seasonably made, and it is the opinion of the court that it should have been sustained, and the action dismissed.

Bxceptions sustained. Motion allowed, and the action dismissed.

Appleton, C. J., Virgin, Peters, Libbey and Symonds, JJ., concurred.