Blanton v. Jamison

• Decision Date: 30 April 1831
• Parties: BLANTON v. JAMISON
• Court: Missouri Supreme Court

3 Mo. 52

BLANTON

v.JAMISON

Supreme Court of Missouri.

April Term, 1831.

ERROR FROM THE LINCOLN CIRCUIT COURT

WASH, J.

This was an action of ejectment, brought by Jamison against Blanton in the Lincoln Circuit Court, in which Jamison obtained a judgment by default, to reverse which, Blanton now prosecutes his writ of error in this Court. Several points have been raised by the counsel for the plaintiff in error, in which the second only will be considered by the court viz: “whether the sheriff's return on the summons shows a legal and sufficient service.” The return is in these words: “I served the within summons on Benjamin Blanton, the defendant, by going to his house and leaving a true and attested copy of the summons and declaration with Lovel Harrison, a white person of said Blanton's family, above fifteen years of age, on the 23d day of Sept., 1829, in Hurricane township, Lincoln county.”

By the 5th § of “an act to regulate proceedings at law,” Rev. Code, p. 623. it is provided, “that the service of a summons shall be by reading the writ or declaration, petition or statement to the defendant, or by leaving a true and attested copy of the same, at the dwelling house or place of abode of the defendant, with some white person of the family at least fifteen years of age, or by delivering him a copy of such writ and declaration, petition or statement.”^(a) Every word of the return may be true, and yet the service have been made in a manner very different from that prescribed in the statute. The sheriff may not have gone to the dwelling house of Blanton, or he may not have left the copy at the dwelling house or place of abode It is fair to infer every thing against the return, which its departure from the statute will warrant, and which we are not precluded from doing by its terms; and the service was clearly insufficient if made by leaving a copy elsewhere than at the dwelling house or place of abode. The judgment of the Circuit Court is therefore erroneous, and must be reversed, with costs and the cause remanded.

(a). Gen. St. of 1865, p. 654, § 7; see Hickman v. Barnes, 1 Mo. R. 156. Return must show that copy was left with a white member of the family--Dobbins v. Thompson, 4 Mo. R. 118. What a family--Ellington v. Moore, 17 Mo. R. 424. What personal service under act of 1849-- Waddingham v. St. Louis, 14 Mo. R. 190. It should appear how process was executed--Charless v. Maury, 1 Mo. R. 537; Jones v. Relfe, 3 Mo. R. 338; Spencer v. Medder, 5 Mo. R 458;

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