38 Mo. App. 473 | Mo. Ct. App. | 1889
delivered the opinion of the'court.
This action is brought on a promissory note against the defendants, Robert and Adam Campbell. There was a judgment in the circuit court against both defendants. It was admitted on the trial that Robert Campbell was the principal in the note, and that Adam Campbell signed it as surety. The principal in the note made no defense, but Adam Campbell interposed the defense, that he had served a written notice on the plaintiff to bring suit on the note against the parties liable for its payment, and that the plaintiff had failed to do so within the time required by the statute. The plaintiff denied that the notice had been served on him.
The note sued on was due October 3, 1885, and suit was begun on the eleventh day of April, 1888; the case was submitted to the court- sitting as a jury. On the trial, the defendant Adam Campbell in support of his defense offered to prove • that, on the sixth. day of February, 1886, he served a notice on the plaintiff, to bring suit on the note, by sending it through the post office; that the notice, so sent, was enclosed in an envelope, properly sealed, postage prepaid, and addressed to the plaintiff at his post-office address in Scotland county, and that the plaintiff had admitted that he received this notice. The plaintiff objected to this evidence, and the court held it to be inadmissible, and rendered judgment against both defendants. Adam Campbell has brought the case to this court by appeal,
The solution of the question, involved in this appeal, depends upon the construction to be given to section 3898, Revised Statutes of 1879. The two preceding sections provide that a surety in any bond, bill or note may, by notice in writing, compel the holder of such an obligation to sue the principal and other parties liable for its payment; and, if the owner of the obligation fails to bring such suit within thirty days after such notice has been properly served, then such surety will be exonerated from liability to the person so notified. Section 3898 provides how this notice shall be served, and it reads as follows: ‘-The notice required ab'ove shall be served by delivering a copy thereof to the person having the right of action on the instrument, or leaving a copy at his usual place of abode with some-person of the family over the age of fifteen years.” This section of the statute provides two modes for the service of such notices. It will only be necessary for us to discuss the first. This mode certainly contemplates a strictly personal service. The statute cannot be read in any other way. Sapington v. Jeffries, 15 Mo. 628. What is meant by personal service ? Unless controlled by statute, the manner of mating personal service must-be by delivering the original or copy to the party, or by reading the notice to the person served. Wade on Notices [2 Ed.J sec. 1340. This excludes the idea of the-service of such notices, by sending them through the mails. The service of a notice, by sending it through the post office, must be regarded as constructive service, as contradistinguished from strictly personal service. Wade on Notices, sec. 1343; Rathbun v. Acker, 18 Barb. 393. It would be perfectly competent for the legislature to provide for the service of any notice by
The judgment of the circuit court will be affirmed.
