Wellington v. Beck

Per Curiam. The code (Mills Ann. Code § 404) provides that a summons to hear errors shall be' directed to the sheriff of the proper county. According to its provisions, he is the official commanded to summon the defendant in error. The statute directs that all process issued out of this court shall be executed by the officer to whom the same is directed, and that the sheriff or his duly authorized deputy shall serve process directed to him. No other officer or person is authorized to perform this duty; hence, an attempt by one to execute process not authorized by law to do so, is a nullity. Unless a summons to hear errors is served as by law required, or such service is in some way waved, this court is without authority to render judgment against a defendant in error. Schwabacker v. Reilly, 2 Dillon, 127; Douthit v. Martin, 39 S. W. Rep., 944; Reptiblican Valley R. Co. v. Sayer, 13 Neb., 280; Lillard v. Brannin, 16 S. W. Rep., 349; Hickey v. Forristal, 49 Ill., 255; Witt v. Kaufman, 25 Tex., 384. ■The issuance of the scire facias to hear errors did not give this court jurisdiction, unless served. The responsibility of a legal service rests with the counsel [75] to whom delivered, and in no case is the clerk required to deliver a writ to the officer to whom directed; that is the duty of counsel; so that the failure to have the scire facias served as by law required, in this instance is the fault of counsel for plaintiffs in error. The judgment of this court, reversing the judgment of the district court, is vacated, the opinion upon which such judgment is based withdrawn, and the service of the writ of scire facias vacated. Leave is granted plaintiffs in error to sue out an alias scire facias, if so advised. Motion sustained. ■