| Iowa | Oct 6, 1860
Two objections are made by the appellant to the sufficiency of the notice and service to give the District Court jurisdiction over the appellant. The notice was served by the sheriff of Scott county, upon the defendant in the State of .Illinois; and his return is made upon said notice by him as the sheriff of said county. The return is afterwards amended by' said sheriff by adding his affidavit thereto, in which he states that the service upon the appellant was made in the manner and form as set forth in his original return.
This service is clearly defective. The sheriff of Scott county had no power, as such officer, to serve the notice outside of the limits of his bailwick; much less outside of the ' boundary line of his State. The affidavit does not aid the defective service. Under sections 1718 and 1732 of the Code, the original notice may be served by any person not a party to the suit. When not made by the sheriff, the service may be proved by the affidavit of the person who made the same. This return is made by the sheriff in his official capacity. The affidavit does not change the character of the return. It only strengthens it (if anything,) by showing that it was done in the manner and form therein set forth. What mannér and form ? Merely that he served the same as sheriff of Scott county, by reading the notice to appellant in the State of Illinois.
The second question presented by appellant is, admitting that the service had been made in a proper manner, would this have given the court jurisdiction over the person of appellant? The plaintiff sought to recover a personal judgment. It was not a proceeding against defendant’s property,
We do not consider that tbe appellant waived tbe objection to tbe jurisdiction of tbe court by bis special appearance. Tbe decision of this court in tbe case of Ulmer et al. v. Hiatt et al., 4 G. Greene 439, recognizes tbe practice and tbe right of tbe defendant to appear specially and plead to jurisdictional questions.
Judgment against tbe appellant is reversed.