Nelson v. Omaley

• Decision Date: 01 June 1829
• Parties: NELSON v. OMALEY
• Court: Maine Supreme Court

6 Me. 218

NELSON v. OMALEY

Supreme Judicial Court of Maine, Hancock

June, 1829

THIS was a process by original summons, in assumpsit, in which the defendant was styled of Baltimore in the State of Maryland. The service was by reading the precept to R. B. Allyn, Esq. as attorney to the defendant; who entered an appearance at the return term, and filed a plea in abatement of the writ because it was not served either by being read to the defendant in person, or by a copy delivered to him, or left at his dwelling house or last and usual place of abode. To this the plaintiff demurred.

Judgment of respondent ouster.

Allyn for the defendant, argued that by a sound construction of the Stat. 1821, ch. 59, sec. 3, service on the defendant's attorney was sufficient only in those cases in which property was attached, or the action was brought to recover land. In all others, the service should be on the defendant himself. But here was neither property attached, nor realty concerned nor notice to the defendant; and the judgment itself, when rendered, would be a useless ceremony. Lawrence v. Smith & al. 5 Mass. 362.

Abbot, for the plaintiff.

OPINION

WESTON, J. delivered the opinion of the Court, at the ensuing July term in Waldo.

Process by original summons is without question suitable and proper in this case. It is not one in which the law requires a separate summons to be left with the defendant. It is then within the express provisions of the second section of the act regulating judicial process and proceedings, Stat. 1821, ch. 59. The defendant having never been an inhabitant of this State, or having removed therefrom, service was made by reading the original summons to his attorney, in conformity with the third section of the same act. It is admitted to be a service warranted by the words of the statute; but it is insisted that it ought by construction to be restricted to cases where the defendant has property within the State which may be taken to satisfy such judgment as may be rendered against him. The law lends its final process to a party in whose favor a judgment may be rendered; but if neither the person nor property of the judgment debtor can be found, upon which to enforce satisfaction, the dignity and authority of the law remains unaffected. It is of private concern; and is not a consideration which warrants or requires a constructive limitation of the terms of the statute. Service might...