Brewer v. Story

PueNtiss, J. delivered the opinion of the Court. The question fe whether the delivery by the officer of a trueand attested copy of the writ of attachment, and of his return thereon, to each of the defendants, without an attachment of their goods, chattels, estate.or bodies, is a sufficient service of the writ upon the defendants to hold them to trial. The ordinary mode of process, in civil causes, within this state, is by writ of summons or attachment; and the form of each is prescribed by statute. As to the manner of serving the processes, it is provided, that the writ of summons shall be served by delivering to the defendant, or leaving at the house of his usual abode, a true and attested copy of the writ, with the officer’s return thereon ; and that when the goods, chattels, or estate of any person shall be attached, at the suit of another, a Gopy of the attachment, with a list of the articles or description of the estate attached, attested by the officer serving the same, shall be delivered to the defendant, or left at the house of his usual abode, as is directed in the service of a summons. It is further provided, that when the body of any defendant shall be taken on mesne process, in any civil action, it shall be the duty of the officer serving the process to deliver the defendant an attested copy thereof, if required.-— [283] (Comp. Stat.p. 64, 66, s. 26, 28.J It is no where declared,that a writ of attachment shall, in any instance, be served by reading ; nor is it expressed, or necessarily implied from any provision in the statute, that it cannot be served, otherwise than by attaching the property or body of the defendant. The writ contains a command to attach the goods, chattels, or estate of the defendant ; and for want thereof, to take his body : but if the plaintiff is disposed to waive the right, which the writ gives him, to take either property or body, the defendant has no cause of complaint ; and if he has notice of the suit by a copy of the writ delivered him, there is no good reason why the service may not be effectual as a summons, and sufficient to hold him to answer to the action. We find that it is held in Connecticut, where the mode of process is the same as here, that the service of an attachment, though bad as an attachment, may be good as a summons. —-1 Swift’s Dig. 611. — No sound reason can be assigned why it should not be so. It has been often decided, and is settled by long practice, that an acknowledgment of service on a writ of attachment is sufficient to hold the defendant to trial; and if that is so, it is difficult to see, why the service upon the defendants, in the present case, may not be effectual against them for the same purpose. A copy of the writ was delivered to each of the defendants, not only as directed in the service of a summons, but as would have been proper if the property or bodies oí the defendants had been taken j and, on the whole, we are of opinion, that the plea in abatement is insufficient, and that there must be iudgment of respondeas ouster. Fletcher, for plaintiffs. Story, for defendants. Judgment accordingly.