Colburn v. Tolles

13 Conn. 524 | Conn. | 1840

Church, J.

The questions in this case arise under a demurrer to a plea in abatement for defective service of the writ of error.

The plea in abatement does not pray judgment of the declaration, and the matters therein contained, but only of the writ. As the only defect complained of, is in the service of the writ, there could be no necessity, nor hardly a propriety, in praying judgment of the declaration.

This plea is not verified by affidavit, nor signed by the party. These formalities have never been required, by our practice.

Pleas in abatement must be framed with the greatest certainty of averment. But this rule does not require courts, in-tbeir construction of them, either to misunderstand, or refuse to comprehend, the ordinary import of language.

If the defendant in error was not a resident of this state, then the law requires service of the writ of error to be made, by leaving a copy of it with the attorney who appeared in the original cause.

It is objected, to this plea, that it does not aver, that no copy was left in service with William B. Bristol, Esq., who was the attorney who appeared in the original suit. We think it does, in effect, aver this. It alleges, that the writ was no otherwise served upon the defendant in error, than by leaving a copy at his last usual place of abode in this state.

It is objected, also, notwithstanding the plea avers, that the defendant in error was not a resident in this state, but was a resident in the state of Mississippi, when the writ of error was served, that it is defective because it does not state in what place in Mississippi the defendant resided. This was unnecessary, and would have been surplusage, if alleged. Enough was averred, to inform the plaintiff, that his writ could only be legally served, by leaving a copy with the attorney of the defendant.

It is also objected, that the plea does not aver, that William B. Bristol was the only attorney, who appeared for the defendant in the original action. The law does not require service of a writ of error to be made, in such cases, upon more than one attorney; and therefore, enough is alleged, in this particular, to enable the plaintiff to make a better and a legal service of his writ.

The plaintiff in error supposed, that as in the original writ in this case, the defendant in error was described to be a resident in this state, he must be considered still to be ; and that he might be treated as such, by the plaintiff, in the service of the writ of error. This is a mistaken view of the law. The statute, in directing the service of writs of error upon nonresidents, had reference only to the time of the service of the writ of error, and not to any previous condition of the defendant, nor to any description of the parties in the original action. The obiect of this provision of the statute would be entirely . ⅛ J , , i.- . frustrated, by any ditierent construction.

"\Ye are of opinion, that the plea in abatement is sufficient.

In this opinion the other Judges concurred.

Plea in abatement sufficient.