162 N.W. 751 | S.D. | 1917
While several questions are discussed in appellant’s brief, we
“extend the statute, by a construction manifestly -in violation of its letter and spirit, so as to prohibit the service * * * by any other person than the sheriff, * * * because, if the plaintiff contracts' with or procures a private person to. serve bis summons, such person is necessarily his agent or attorney, and acts for him-, and not as an officer of the court or of the law.”
Respondent has cited several authorities in support of his contentions, but' an examination of same will show that in every case where a deputy was held disqualified he could and wasi acting only in the capacity of an officer of “the court or of the law,” and not merely as a private individual, the agent of the party for whom service is made. It is not necessary for us at this time to decide, and we therefore do not decide, whether or not one who chances to be deputy sheriff -could, a's an individual, make service on behalf of the sheriff where the sheriff was a party to the action in bis official capacity.
It is clear that the trial court erred in, not allowing the return to be amended, and also erred! in holding that through the facts as shown by such amended return the court acquired no jurisdiction over the person of the defendant.
The -order appealed from is reversed.