Dow v. March

80 Me. 408 | Me. | 1888

Peters, C. J.

The question is whether a judge can refuse to allow judgment to go in an action in which, on inspection of the officer’s return on the writ, it appears that service, by summons, was made only thirteen days before the return day of the writ, the defendant failing to appear in the action. The refusal of the judge was cox'rect. The law inquires the service tp be made fourteen days before the return term. Anything less than that is not a legal seiwice, in other words, is not a service. And a defendant may rely in such case on a want of notice as an excuse for his non appearance in the action. He may expect that an improper judgment will not be accorded against him. If a thirteen days’ service will do, then one day’s notice would do just as well.

The cases are entirely different from this, in which it has been held, as in Snell v. Snell, 40 Maine, 307, that an appearance, though special, cures a defective service, unless seasonable plea or motion be made after appearance to take advantage of the defect. A defendant in such case waives an insufficient service, if he appears to object to it, but fails to make his objection as required by the rules of court, and his appearance stands for all purposes. The presumption is that he assents to the service, and appears generally, having taken no steps to indicate to the contrary.

Exceptions overruled.

Walton, Virgin, Libbey, Foster and Haskell, JJ,, concurred.