6 N.H. 217 | Superior Court of New Hampshire | 1833
delivered the opinion of the court.
The writ, in a case of foreign attachment, is to be served upon the trustee in the manner writs of summons are
The copy left in this case does not appear, by the officer’s return, to have had the officer’s return upon it, and instead of being left at the house of the trustee, was given to him in person.
It Ims been decided, that giving the summons to the party in person, is equivalent to leaving it at his place of abode.
Cut can any service sustain a judgment rendered upon a default which is not substantially what the statute requires ?
It is provided by statute, that the summons left with the defendant, when his goods or estate is attached, shall contain certain things and be endorsed by the officer, and it is declared that for any failure in this respect the writ shall abate. And it has always been held, that if such defect be not pleaded in abatement, it is waived. But this rests on the ground that the statute has declared what shall be the effect of any omission to comply wills its requisitions in this respect.
When there is any substantial defect in the service of a writ, the defendant may appear and answer to the action, and this will cure any defect in the service.
Or, he may appear and plead in abatement a defective service, and thus stop the suit. 7 Mass. Rep. 29; 12 ditto, 36.
Or, he may refuse to appear, and if the plaintiff pro ceed, may bring a writ of error and reverse the judgment. 8 Pickering, 163; 3 N. H. Rep. 198.
In this case, judgment was rendered upon a default, and the service does not appear to have been what the statute required. Is the judgment erroneous ?
It has been decided in this court, that it is not enough
And we are of opinion that there is error iu this judgment.
