Muzroll v. Hetu

Watson, J. Service was made on defendant Hetu by one deputy sheriff and then, without the process being returned, service was made on defendant Bemis by another deputy sheriff. Defendants jointly plead in abatement that the writ was not served on Bemis and returned by the same officer who had served it on the other defendant, praying judgment of the writ and that it be quashed. Nothing appears in the plea showing how the writ came into the hands of the second officer for service on Bemis, nor that he did not serve and return the same as required by law, and no intendments will be made in favor of the plea. The writ may have been given to that officer by the plaintiff'or by his direction for that purpose. Assuming without deciding that as to defendant Hetu the service is defective because the officer who made service on him made no return of the process, yet this is a matter personal to that defendant and does not affect the validity of the service upon the other defendant by the second officer and the return of the process made by him, consequently the plea is insufficient. In Shannon v. Comstock, 21 Wend. 457, 34 Am. Dec. 262, it was held that a plea in abatement by two defendants going to the whole suit, for a cause personal to one of them only, was bad. And in Bliss v. Smith, 42 Vt. 198, the returns on the writ showed that it was served upon two of the defendants by an indifferent person, and upon the other defendant by another person as deputy sheriff. The plea in abatement was by all the defendants and put upon the ground that the service made by the authorized person was invalid for the reason that in making it he was not in fact indifferent, he being recognized for costs in the-writ. The service on the one defendant by the deputy sheriff was unexceptionable, and no question was made as to its validity. It was held that the defective service on the two defendants by the authorized person, if it was defective, did not affect the validity of the service on the other defendant, and [142] that the plea was insufficient in that the prayer was too large in asking that the writ be quashed as to all. Judgment affirmed, mid judgment that the defendants answer over. Cause remanded.