Ser v. Bobst

• Citation: 8 Mo. 506
• Parties: SER v. BOBST.
• Decision Date: 31 January 1844
• Court: United States State Supreme Court of Missouri

8 Mo. 506

SER

v.BOBST.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM MONTGOMERY CIRCUIT COURT.

CAMPBELL, for Appellant.

TOMPKINS, J.

This was an action of forcible entry and detainer, brought by Henry Bobst before a justice of the peace of Montgomery county. Judgment by default was given before the justice, against the defendant, Adam Ser. To reverse this judgment, this appeal is taken. When the cause came into the Circuit Court, on the appeal, the plaintiff, Bobst, moved to dismiss it, because the judgment of the justice was by default, and no motion was made by the appellant to set the same aside before the appeal was taken. The 11th section of the act of 28th of January 1839, p. 47, gives to the party aggrieved by the judgment of the justice, in any case of forcible entry and detainer, or unlawful detainer, an appeal, except from a judgment of non-suit, or by default. I am not informed of any law which allows the appeal from a judgment, by default, in this action, in case the appellant move the justice to set the same aside before the appeal is taken. The appeal, however, was allowed by the justice, and taken by the defendant. Before the cause was dismissed from the docket of the Circuit Court, that court should have examined whether a judgment were correctly given by the justice, or rather it was the duty of the counsel of the appellee to show to the Circuit Court that such judgment was correctly given. The 8th section of the act concerning Forcible Detainer, p. 278 of the Digest of 1835, directs the summons to be served, by reading the complaint and summons to the defendant, or delivering him a copy thereof, or by leaving such copy at his usual place of abode, with some white member of his family above the age of fifteen years, and explaining to such person the centents thereof.

The return in this case is: “Executed the within, by leaving a copy of the within at the dwelling-house of the said Adam Ser, with his wife, and reading the same to his wife, on the 20th day of February, 1848.”

It may be admitted, that by the words, “the within,” used in the return, the constable intended to say the copy of the summons and complaint. A man may have several dwelling houses, some of which may be rented. It would have been better to have returned the copy left at his “usual place of abode,” as in the law. We may intend the defendant's wife to be “some white member of his family,” although man and wife sometimes live apart; but it cannot be presumed...