Winslow v. Lambard

Walton, J. A judgment obtained on default of the defendant when there has been no legal service of the writ is erroneous. Railroad v. Weeks, 52 Maine, 456. And a judgment against two defendants, when the writ was served only on one of them, is equally erroneous. Buffum v. Ramsdell, 55 Maine, 252. When there are two or more defendants, and the cause of action is joint, a want of service on one of them is a good cause for abatement of the writ as to all. Sawtelle v. Jewell, 34 Maine, 544. In this case the judgment sought to be reversed was obtained on default of the defendants, and there is no pretense that the writ was served on more than one of them; and the validity of the service on him is denied. He was absent in the army, and the service was by a summons left at the house of his father at Bath. He was a married man, or had been, had a family of his own, and had resided for many years in California, and he denies that he had a home at his father’s, and says he had no notice whatever of the pendency of the suit. The validity of such a service may well be doubted. But it is unnecessary to determine whether the service on him (Winslow) was legal or not, for there is no pretense of any service on the other defendant, Grant. As to him the officer testifies as follows : “I did not serve said writ on James R. Grant; he was not here at the time, and had no residence here that I know of; I could not find him in my precinct.” There was no-appearance for either defendant, and the action was defaulted at the return term of the writ. A judgment obtained under such circumstances is clearly illegal. Judgment reversed. Appleton, C. J.; Kent, Barrows, Danfoeth, and Tapley, JJ., concurred.