20 Iowa 118 | Iowa | 1865
An ad quod damnum proceeding, commenced on the 26th day of April, 1865.
This, in our opinion, is not an adequate reason for dismissing the proceedings. It assumes, that the statute makes such service and proof a prerequisite to the filing of the petition in the clerk’s office. But this assumption derives very slight support, either in the express terms of the law or by necessary implication, and none at all in reason. Under section 1265 of the Revision the defendants are entitled to have a copy of the petition served upon them ten days, before the clerk of the court is authorized to issue the writ. This service is to be proved and then filed with the petition. The statute is not, that this service and proof shall be made before or at the time of the filing of the petition, but that it shall be made and filed with the petition, which is supposed already to be in the office of
In this case, the applicant filed his original petition in the office of the clerk of the District Court; ten days’ notice of the same was given to the defendants, by serving them with a copy thereof. The statute requires proof of such service by affidavit. It is evident, from the record, that the officer, in order, as he supposed, to comply with this direction of the statute, made two copies of the original petition and notice, one of which he served upon the defendants, the other he annexed to and made a part of his return, to show a literal compliance with the law, and even affixed to his return another revenue stamp. This, in the motion to dismiss, is claimed to be a new petition, which supersedes the first. But it has scarcely the color of any show in fact or reason. Proof of the service, as made, was required to be filed with the petition in the clerk’s office. The officer adopted this method, perhaps unnecessarily, but. certainly to comply literally with the requirements of the statute. We think the order for dismissing the proceeding should be reversed.
Reversed.