25 Del. 457 | Del. Super. Ct. | 1911
delivering the opinion of the court:
It appears from the petition filed in support of the rule, that the above-entitled cause was docketed in this court at its May term, 1907; that no service of process was made or attempted to be made upon the defendant, except in the manner shown by the return indorsed thereon, as follows: “Service accepted.” [Signature of Attorney], “Attorney for William E. Dyer, May 18th, 1907;” that judgment was moved for and entered for want of an affidavit of defense and execution on the judgment thereafter issued.
Service upon or service accepted by the attorney of a defendant in an action, is service upon an agent and is good only when made so by statute. As there is no statute making legal the acceptance of service by an attorney for, a defendant, such a service does not constitute legal service, notwithstanding its effect may be to bind the attorney, morally or professionally, to cure the defect by appearance. The court therefore holds that there was no legal service in this case and that the judgment entered thereon and the execution issued thereunder should be vacated.
Rule absolute.