48 F. 241 | U.S. Circuit Court for the District of Rhode Island | 1891
This action was commenced in the court of common pleas for the county of Providence, in the state of Rhode Island, by attachment of real estate of the defendant. The defendant was not personally served with process. He appeared specially, and tiled a plea denying the jurisdiction of the court, and also a petition whereby the action was removed into this court. Ho now, still appearing specially, filos a motion to dismiss the action “on the ground that he is not a resident or citizen of said state of Rhode Island, and was not found, or served upon personally with process, in said state or district of Rhode Island.”
In support of this motion the defendant first contends that this court can have no jurisdiction of any action wherein the defendant is not personally served with process, and cites Perkins v. Hendryx, 40 Fed. Rep. 657. I have already had occasion to consider this question in Bank v..
There are two other alleged grounds for dismissal which were argued at the hearing, but not referred to in the written motion. The first is that the return of the sheriff does not show that the writ was duty served. The statute of Rhode Island provides that the officer shall “leave an attested copy of such writ * * * with the defendant personalty, or with some person at his last and usual place of abode, if any he have, within the precinct of the officer, or, if he have none, then such officer shall send such copy by mail to such defendant, * * * and shall also in the last-named event leave a like copy with the person, if any, in possession of such real estate.” In this case the officer returned that, the defendant having no last and usual place of abode within his precinct, he nad sent the required copy by mail, but made no return as to a copy to any person in possession. I think this return is insufficient. It is argued that, as the defendant is a non-resident, it is to be presumed that no person was in the possession of his real estate; but I see no possible ground for such a presumption. If, therefore, the return stands as at present, the action must be dismissed. The plaintiff, however, moves that the officer may amend the return by adding a statement that no person was in possession. This motion will be granted if property and seasonably supported by affidavit to the effect that such an amended return is in accordance wdth the facts, the defendant having notice of the filing of the affidavit, and an opportunity to contradict it. The second ground which was argued is that the declaration does not set out a sufficient cause of action. I think this question is not property raised by a motion to dismiss, but must be argued on a demurrer. The action will be dismissed, unless affidavit in support of the motion to amend he filed within 10 days.