1 Ark. 552 | Ark. | 1846
delivered the opinion of the court.
The 13 section of the 116 chapter of the Revised Code, provides that a summons may be executed either by reading the writ to the defendant or by delivering him a copy thereof, or by leaving a copy thereof, at his usual place of abode with some white person of the family over the age of fifteen years. The sheriff certifies that he executed the writ upon John Clauson and T. C. Boyer on the 5th of July at the county of Crawford and State of Arkansas by then and there leaving a true copy thereof, at their usual place of residence, with Mrs. Boyer and Mrs. Clauson, members of the family over the age of fourteen years. Clauson appeared under this service and filed the plea of the general issue. Boyer made no appearance, but made default. Clauson by appearing and pleading to the merits waived any advantage that he might otherwise have taken of the service. The record contradicts itself when it shows a regular plea, and that pleaded too in apt time, and at the same time says that Clauson had nothing to say in bar or preclusion. The circuit court manifestly erred in giving judgment against Clauson by nil did/, without making any disposition of of taking any action upon his plea. The service is clearly bad as the copy of the summons does not appear to have been left with a white member of the family over fifteen years of age. A service varying from the form prescribed by the Statute in any essential particular is tantamount to no service whatever. In order to have given jurisdiction over the person of Boyer, it was necessary that the copy should have been left with some white person, a member of the family, and also that such person should have been over the age of fifteen years. The Statute is express and imperative, and we are not authorized to indulge any presumptions in favor of either color or age. The record nowhere shows that he ever waived the defect in the service by entering his appearance, consequently the judgment against him is irregular and void. It is therefore considered and adjudged that the judgment herein rendered by the circuit court of Crawford county be and the same is hereby reversed, annulled and set aside with costs, and it is ordered that the cause be remanded, and that Boyer be required to appear and defend the action as if he had been served with a valid process thirty days before the return day of the writ.
