Smith v. Cohea ( 1838 )

Mr. Justice Pray

delivered the opinion of the court.

The errors assigned in this case are, 1. There is no sufficient service of the writ on the defendant Smith, and the judgment is by default. 2. The judgment is for a greater sum than the note sued on will justify.

The return of the sheriff is in these words. “Executed by leaving a copy at his boarding house, October 7, 1836.”

This was a case where no bail was required, and in such case the service may.be made as follows, under the statute, Rev. Code, p. 114, sect. 44.

“ Where the defendant cannot be found, it shall be deemed a sufficient service of such writ, for the sheriff or other officer to whom the same is directed, to leave a copy thereof with the wife of the defendant or some free white person about the age of sixteen years, then and there being one of the family of the defendant, and found at his usual place of abode, or leave a copy thereof at some public place at the dwelling house, or other place of residence of such defendant, he being from home, and no such free white person being found there willing to receive the same.”

If the sheriff returns a process endorsed with the word “ executed,” to which he has signed his name, the court cannot question the legality of the service, but if he sets forth the manner of service, the court will judge of its legality.

In the present case, the sheriff has not returned simply “ executed,” but states the manner of execution. The question then is, whether the manner of executing the process contained in the return, is such an one as the statute authorises? We think not.

The leaving of a copy at the boarding house of the defendant, is nowhere permitted to be a proper service. If sheriffs set forth the manner of service, they must take care that the terms of the law be complied with.

Judgment below must be reversed, and the cause remanded.