Calhoun v. Webster

Lockwood, Justice, delivered the opinion of the Court: (2) It appears from the record in this case, that the summons was dated the 6th Nov. 1839, and returnable at the next term, to be holden on the third Monday in the month of November next. The process was served on the defendant, on the 7th of November, 1839, and judgment was taken by default, at the November term, 1839, which was holden on the third Monday of said month. The only question is, whether this judgment was regular. It has repeatedly been held, that where more than a term intervenes between the test and return of original process, the writ is a nullity. (3) The writ being absolutely void, the cause is out of Court. It was consequently irregular to enter judgment by default. The judgment is reversed with costs. Judgment reversed. Note. See Beaubien v. Barbour, 1 Scam. 386. Footnotes [(2)] Smith, Justice, was not present at the argument of this cause. [(3)] 2 Johns. 190 ; 3 Wilson 341; 2 Blac. R. 845.