Dobbins v. Thompson
| Decision Date | 31 August 1835 |
| Citation | 4 Mo. 118 |
| Parties | DOBBINS v. THOMPSON |
| Court | Missouri Supreme Court |
Thompson brought a suit of forcible entry and detainer before two justices of the peace to recover possession of a lot of land--the plaintiff Thompson had a judgment--Dobbins took out a certiorari from the office of the Circuit Court of Howard county. When the cause was brought into the Circuit Court, Thompson moved the court to dismiss the suit because he had not been served with a notice of the writ as the law requires. The case was dismissed, and this is the error assigned by the plaintiff in error. It appears that a notice had been served by the sheriff on one Charles French and the question was whether the service was good or not. The 34th section of the act regulating practice of law, Rev. Code 630, says, notices in the progress of a cause may be served by the sheriff in the same manner a writ of summons is required to be served. The 5th section of the act points out the mode of serving a summons. The sheriff returns that he served the notice on Charlcs French, who was at the house of Thompson, and had been for several years a boarder in the family, and he considered him to be a member of Thompson's family, &c. When this case was before the court on the first argument we thought the return good enough; but now we think otherwise.
The 5th section says the service of a summons shall be by reading the writ, & c., 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 above the age of 15 years, &c. The objection now taken to the service of the notice is that Charles French does not appear to be a white person of the family The law was not willing to have this copy left with a black person, it must be left with a white person. The return should show this, which it does not do. The service is therefore bad. The plaintiff in the certiorari offered evidence to prove that French was a resident or member of Thompson's family: this we think might have been done if necessary. This evidence was objected to and excluded by the court. But this exclusion is a matter of no consequence as he offered none and gave none, to show Charles French was a white man--without which his case would still have been bad. If this evidence had been given it would have proved in substance no more than what the return proved already, and then the case would have been just where it is. The...
To continue reading
Request your trial
-
L. J. Mueller Furnace Co. v. Dreibelbis
...614, loc. cit. 617; 3 Words & Phrases, p. 2673; Schulenburg v. Bascom, 38 Mo. 189; Towner v. Remick, 19 Mo. App. loc. cit. 207; Dobbins v. Thompson, 4 Mo. 118; Ellington v. Moore, 17 Mo. 424, loc. cit. 427; Jarboe v. Jarboe, 106 Mo. App. 459, 79 S. W. 1162; Rosenberger v. Gibson, 165 Mo. 16......
-
Stewart v. Stringer
...427. Alexander and Lackland, for respondents, cited Corby's Assignor v. Burns et al., 36 Mo. 194; Blanton v. Jamison, 3 Mo. 52; Dobbins v. Thompson, 4 Mo. 118; Waddingham v. City of St. Louis, 14 Mo. 190-4; Hickman v. Barnes, 1 Mo. 158; Stewart et al. v. Stringer et al., 41 Mo. 400; 9 Mo. 4......
-
Madison Cnty. Bank v. Suman's Adm'r
...in the officer's return. But we are of the opinion that this parol evidence was incompetent. It is true that Judge McGirk, in Dobbins v. Thompson, 4 Mo. 118, suggested that such evidence would be competent. The point was not necessary to the conclusion reached in that case. But it cannot be......
-
Brown v. Langlois
...v. Douglass, 1 Mo. 239; Waddingham v. St. Louis, 14 Mo. 195; Hewitt v. Weatherby, 57 Mo. 279; Matthews v. Blossom, 15 Me. 401; Dobbins v. Thompson, 4 Mo. 118; Sanders v. Rains, 10 Mo. 770. NAPTON, J. This suit was brought in the Cape Girardeau common pleas court, and the service of the writ......