Etelson v. Andre.

Decision Date19 November 1948
Docket NumberNo. 705.,705.
Citation61 A.2d 806
PartiesETELSON v. ANDRE.
CourtD.C. Court of Appeals

OPINION TEXT STARTS HERE

Appeal from The Municipal Court for the District of Columbia, Civil Division.

Action by Wanda H. André, landlord, against Louis G. Etelson, tenant for possession of realty. From an adverse judgment, tenant appeals.

Affirmed.

Herman Miller, of Washington, D.C., for appellant.

James A. Crooks, of Washington, D. C., for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

HOOD, Associate Judge.

This is an appeal by a tenant from a judgment against him for possession of housing accommodations.

The only error assigned relates to the validity of the service of process. Service of process in summary actions for possession of real estate is regulated by the following code section:

‘The summons shall be served seven days, exclusive of Sundays and legal holidays, before the day fixed for the trial of the action. If the defendant has left the District of Columbia, or can not be found, said summons may be served by delivering a copy thereof to the tenant, or by leaving the same with some person above the age of sixteen years residing on or in possession of the premises sought to be recovered, and if no one be in actual possession of said premises, or residing thereon, by posting a copy of said summons on the premises where it may be conveniently read.’ Code 1940, § 11-736.

In this case the return of the marshal was:

‘Summoned by posting a copy hereof on _____ of said premises, the defendant not to be found, and no person above the age of sixteen years to be found in possession of, or residing on, said premises.’

On motion to quash service testimony was taken and the trial court found the following facts. The marshal went to the premises at about 11:00 a. m., rang the bell several times but received no response. He went back about 1:30 and in response to his ring a maid came to the door and in reply to his inquiry stated that defendant was not at home and she did not know when he would return. Thereupon the officer told the maid he was a deputy marshal and had a paper for defendant and he asked her to take the paper and give it to defendant. The maid refused, stating she had instructions not to take any paper from anyone. The marshal told her it was important that defendant get the paper and she should take it and be sure that defendant received it. The maid again refused to receive the paper and, as she began to close the door, the marshal stated he was going to tack the paper on the door and because of the wind she should take the paper before it blew away. He then tacked the paper on the door. When defendant's wife returned home in the afternoon the paper was on a table in the hallway.

On the foregoing facts the trial court held that valid service had been effected. The tenant, conceding in effect that service was properly made, contends that it was made...

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8 cases
  • Alexander v. Polinger Co., 84-825.
    • United States
    • Court of Appeals of Columbia District
    • 1 Agosto 1985
    ...contentions are insufficient to overcome the distinction between insufficient proof of service and invalid service. Etelson v. Andre, 61 A.2d 806, 807-08 (D.C.1948); Peeples v. Ramspacher, 29 F.Supp. 632, 636 (D.S.C.1939) (citing Fed.R.Civ.P. 4(g)). Appellants have neither alleged nor proff......
  • Dewey v. Clark
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 6 Febrero 1950
    ...one is in "actual possession" or "residing thereon" and posting is proper.3 See Etelson v. Andre, decided by the court below, D.C.Mun.App. 1948, 61 A.2d 806, 808. This leaves for consideration the meaning of the statutory phrase "can not be found" and whether its requirements were met by th......
  • Jones v. Hersh
    • United States
    • Court of Appeals of Columbia District
    • 25 Marzo 2004
    ...451 A.2d 62, 64 (D.C.1982) (" § 16-1502 makes no mention of the degree of care which a process server must observe...."); Etelson v. Andre, 61 A.2d 806, 808 (D.C.1948) ("The statute makes no reference to due diligence...."). And though the statute is of a hoary vintage, see Dewey v. Clark, ......
  • Westmoreland v. Weaver Brothers, Inc.
    • United States
    • Court of Appeals of Columbia District
    • 2 Octubre 1972
    ...420 F.2d 245 (1969). 12. Although the statute does not expressly require diligence on the part of the process server, Etelson v. Andre, D.C.Mun.App., 61 A.2d 806 (1948), such a requirement has been judicially construed to exist. Bell v. Tsintolas Realty Co., 139 U.S.App. D.C. 101, 430 F.2d ......
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