Mayer v. Griffin

7 Wis. 82 | Wis. | 1859

By the Court,

Smith, J.

The fourth subdivision of section 39 of the code of procedure, provides that in all other cases (except corporations, minors and lunatics) the summons shall be served by delivering a copy thereof to the defendant personally, or if not found, by leaving a copy thereof at his usual place of abode in presence of some one of the family of suitable age and discretion, who shall be informed of the contents thereof.

The certificate of service endorsed on the summons falls short of the requirements of this provision. The affidavit of the appellant shows that he was out of the State at the date of the alleged service, and had no family, nor any member of his family, in said State. The Sheriff states' that he left a copy of the summons with one G. T. Gohan, a workman in the employ of said appellant, in his shop as such abode, and conducting his business. He does not state that Gohan was a member of Griffin’s family, but a workman in his employ. This is clearly insufficient. The service must be by leaving a copy with a member of the family of the defendant, and by informing such member of its contents. We cannot infer that a hired workman in the shop of a person is a member of his family. The contrary intendment is the most natural. The service was not sufficient to give the court jurisdiction of the person of the defendant, and the suit ought to have been dismissed.

Order of the court below reversed.