Smith's Adm'r v. Rollins

• Citation: 25 Mo. 408
• Parties: SMITH'S ADMINISTRATOR, Defendant in Error, v. ROLLINS et al., Plaintiffs in Error.
• Decision Date: 31 July 1857
• Court: United States State Supreme Court of Missouri

25 Mo. 408

SMITH'S ADMINISTRATOR, Defendant in Error,

v.ROLLINS et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1857.

1. A sheriff made the following return of service of process: “I do hereby certify that I served the within petition and writ on the within named A. B., by delivering a copy to the wife of the said A. B., over sixteen years of age, on this,” etc. Held, that the return was defective in that it did not appear that the copy was delivered at the usual place of abode of the defendant.

2. The fact that the defendant, A. B., when the cause was called for trial and he was called into court, appeared and objected to the court's proceeding with the cause on the ground that he had not been served with process as required by law, is not such an appearance as would make a judgment by default against him regular.

3. Where there is a defective service of process upon one of several defendants, he is entitled to have a judgment by default against him and his codefendants jointly set aside. Being an entire thing, it must be set aside as to all the defendants.

Error to Moniteau Circuit Court.

This was a suit against David E. G. Rollins and others upon a promissory note for $250. The following is the return of the service of process by the sheriff: “I do hereby certify that I served the within petition and writ on the within named David E. G. Rollins, Alexander R. Nelson, Edwin H. Daggett and William McKissick, by delivering a copy to the said A. R. Nelson, E. H. Daggett and William McKissick on this 28th day of August, 1856, and by delivering a copy to the wife of the said D. E. G. Rollins, over sixteen years of age, on this 6th day of September, 1856, in Moniteau county. Given under my hand this 8th day of September, 1856. [Signed] Stephen Howard, sheriff Moniteau county, Mo.”

At the return term, no answers having been filed in behalf of defendants, a judgment by default was rendered against them. A motion was made in behalf of Rollins to set aside this judgment by default on the ground that there had been no legal service of process upon him, Rollins. The court overruled the motion. It appears from the bill of exceptions that “on the trial of the above entitled cause, at the return term of the writ issued in said cause, when the cause was called for trial, the said defendant, Rollins, being called into court, objected to proceeding in said cause because he had not been served with process as required by law; but the court proceeded to render judgment by default in said cause; and thereupon the said defendants filed a motion to set aside said judgment,” etc.

Edwards, for plaintiffs in error.

I. The return of the sheriff as to the service of the writ did not authorize the court to render judgment against Rollins, and the judgment, being against all the defendants jointly, is void as to all. The service on Rollins is by leaving a copy with his wife; where it was left the sheriff does not state. (See R. C. 1855, p. 1223, §7.)

Parsons, for defendant in error.

I. The co-defendants of Rollins not having filed a motion to set aside the judgment rendered against them, the judgment of the court below must stand against them.

II. The defendant, Rollins, was in court at the time of the rendition of the judgment; for it appears by the record that after rendering judgment thereupon...