Bugbee v. Thompson

41 N.H. 183 | N.H. | 1860

Fowler, J.

The officer left but a single copy at the common residence of the two defendants. He returned that he left it at the residence of one of them. He asks to make a new return, stating that he gave the same copy to the other. The case finds the copy was in fact given to the other, but the amendment to the case, desired by the defendant and fully sustained by evidence, goes to show that it was actually given to neither, but handed to a brother of both, at their common residence.

It does not occur to us that the desired amendment to the case could in any way affect the result to be arrived at by us. The effect of its allowance would only be to show that the proposed amendment to the oflicer’s return should not be made, because it would be false. But it is quite clear, upon the facts stated in the case as drawn, that if the proposed return were true, the existing one must be false, and therefore the new return could only be allowed upon condition of erasing the original one, and granting to John H. Thompson the same time to plead that he would have had if it had never been made.

But, as before .suggested, it seems wholly immaterial whether the case be amended or not. If amended, and the officer should then ask leave to amend his return by stating that the copy was left at the house of Hosea Q. Thompson, the precise question raised by the case, as already drawn, would be presented, namely, whether, where two defendants reside in the same house, it is a sufficient service of the writ upon both, to leave or give a single copy, or summons, for or to both of them; and we think it cannot be. The statute' requires each defendant, resident within the jurisdiction of the court, to be notified of the pendency of the suit, by having delivered to him, or left at bis usual place of abode, a summons in tbe form prescribed by law, or a true and attested copy of tbe writ, or by having tbe writ read to him personally by tbe officer. This requisition must be literally and strictly complied with. It is wholly immaterial, so far as tbe service of tbe writ is concerned, whether two or more defendants reside in tbe same or in different houses. Tbe service of process is to be made according to tbe requirement and manifest intention of tbe law, and no attempt of an officer to avail himself of the advantages of a full discharge of his duty, by performing only a portion of it, is to be countenanced or tolerated.

Upon tbe facts shown by tbe evidence upon the application to amend tbe case, there is no ground for any amendment of tbe officer’s return ; and upon those stated in the case drawn, it would not be a proper exercise of the discretion of the court to grant leave to amend the officer’s return as desired, because no advantage to the cause of truth and justice would thereby be gained.

Amendment refused.