Bliss v. Connecticut & Pas. Rivers Railroad

By the Court. In this case, the writ was served by an indifferent person,, and no authority whatever appears for such service. The defendants moved to dismiss the action for want of service, therein alledging that the person serving the same, “ does not appear to have had any authority to serve, the same” and that the writ purports to have been served by such indifferent person, and that defendants have not accepted service. If the defects complained of, were in the form of the authority, or in the service, it should clearly be pleaded in abatement, or it would be disregarded, but where the defect complained of, is a total want of an essential ingredient either in the writ, or service, it has been customary to take notice of it upon motion. If the writ was not signed by any one having authority to sign writs, or not signed at all, or if it were signed by one having no authority whatever, or not served at all, and if these defects are in their nature incapable of cure by any supposable replication, [431] we do not see why the defect may not be taken advantage of, by motion to dismiss. And in the present case, if the form of the authorization were ever so defective, or if there were any mode known to the law, by which an authority to serve writs, could be conferred by an act not appearing on the writ, or if there were any supposable mode in which an indifferent person could serve a court writ, not directed to him by name, we should certainly feel called upon to overrule this motion, or to affirm the judgment of the county court doing so. And under the circumstances of the present case, after verdict and judgment, if the judgment could fairly be affirmed, without seeming absurdly refined in escaping obvious and glaring defects, sufficiently apparent not to escape the notice of any one, and as fatal as any defect could be, we should certainly be inclined to do it. If this motion had not been filed strictly within the rule of the county court, we would presume the court overruled it for that cause. But we have not been able to find any such mode of escape. And it seems to us the defect is one of merits, and that it is entire and not merely formal, or circumstantial, and that it is so apparent upon the record, that it is impossible to say it may not be taken advantage of by motion to dismiss, and that it is not curable by any supposable replication, and that it is therefore fatal even in this form. The supposition which is the only one by which we have seen any mode of making out any service of the writ, i. e., that Barker might have been a constable or sheriff, if it had been true, should have been brought upon the record by an amendment.— This might have been done as well on a motion to dismiss, as on a plea. With a sincere desire to escape the consequences of this motion at this late stage in the case, and an earnest effort to do so, we have found it impossible, and the judgment is therefore reversed and t,he suit, dismissed. Case v. Humphrey, 6 Conn. R. 130, seems fully to sustain the view here taken.