Averill v. Mathes , 1875 N.H. LEXIS 137 ( 1875 )

Service of writ upon principal defendant when no service is made on trustee. This is a writ of error to reverse a judgment of the supreme judicial court, rendered at the April term, 1873, upon a default in an action of debt on a judgment by John W. Mathes, the defendant in error, against Samuel Averill, the plaintiff in error. The action was commenced by a trustee writ in the usual form, whereby the officer was directed to attach the money, c., of the defendant in the hands of John R. Wilton, and summon said Wilton, c. The officer's return shows an attachment of personal property of the defendant, and concludes, — "I have summoned the within named Samuel Averill by giving him an attested copy of this writ;" and it does not appear that any service was made upon the trustee.

The matters assigned for error are, that said writ of John W. Mathes v. Samuel Averill, upon which said judgment was rendered, was never served upon the said Samuel Averill in the manner provided by law, and he had no notice of said suit, in this, that no summons in the form prescribed by law, with the name of the officer and his office indorsed thereon, was given to said Averill, or left at his usual place of abode, nor was there any trustee summoned in said original action; and, also, for that judgment was rendered in said action for the sum of twenty-one dollars and sixty-five cents, costs of suit, whereas it should have been rendered only for the sum of six dollars and fifty-five cents, costs of suit.

It is clearly no cause of error to the defendant that no service was made upon the trustee. Whiting v. Cochran, 9 Mass. 532. The return shows that the writ was served upon the principal defendant, according to the requirement of the statute. Gen. Stats., ch. 230, sec. 3.

The charges of the officer for money expended in moving and keeping the property attached until it was taken from his possession on a writ of replevin, which are relied on in support of the second matter assigned for error, appear to be entirely reasonable and just, and were verified by an affidavit accompanying the return, stating the particulars as required by the sixty-first rule of court. I think the judgment should be affirmed.