11 F. Cas. 306 | U.S. Circuit Court for the District of Michigan | 1853
OPINION OF
A motion is made to set aside the process in this case, on the ground that it has not been properly served. The endorsement on the writ is “Copy left at defendant’s place of business.” The law requires, personal service or a copy left “at defendant’s usual place of abode.” A plea to this effect being filed, it is abandoned, and the motion is substituted.
It is objected, that defendant by filing the plea appeared in the case, and that he cannot, under such circumstances, abandon the plea. But the court held, that a plea in abatement by the party is not an appearance which constitutes a waiver of process, and also that the service was defective. Where a personal service of process is not made, the requisites of the statutes substituted for it, must be strictly complied with. The copy should have been left at the residence of the defendant, and not at his place of business.