Spafford v. Spafford

Curia, Per Redfield, J. The libel in this case has clearly not been served upon the petitionee in the manner required by the statute. The Revised Statutes, ch. 63, § 25, require, that, “ when the party complained of [in an application for a divorce ] is within the state, the libel, together with a summons to appear and answer thereto, shall be issued by the clerk of the court, and should be served on the adverse party twelve days, at least, before the sitting of the court.” Section 26 provides the mode of serving such summons ; which is substantially the same as the serving of other writs of summons, without specifying by whom, it may be served. We conclude it must be intended that it may be served by the same authority as other writs of summons, — that is, by a public officer, or, for want of such officer, by an indifferent person, “being named.” In the present case there was no such process issued as the statute requires in such a case; and no legal notice was given, if such process had been sufficient. And although there is no objection made by the defendant to the regularity of the proceedings, yet even that fact, we think, is not sufficient to cure the defect. The notice to the petitionee was one which, by law, he was not bound to regard.