Eaton v. Fullet

Opinion by Treat, C. J.: By the agreement of the parties, the right of the plaintiff to proceed with the case, was made to depend on the validity of the service of process on the defendant. They stipulated that the suit should be dismissed, if the defendant had not been legally served with process. They referred that single question to the Court, with liberty to either party to except to the decision. We think the Court erred in not sustaining the motion to dismiss. There was no valid service of process on the appellant. Before the service was made, the sheriff returned the summons into the Court from which it emanated, with the indorsement that the defendants were not to be found in the county. He thereby parted with all control over the process, and his authority to execute it was fully determined. The force of the writ was wholly spent, and could not be revived by again delivering it to the sheriff. The delivery of the summons conferred no new authority on the sheriff, and his acts under it were nullities. But it is insisted, that the defendant, by pleading to the action, waived all right to take advantage of the want of service. How that might be, but for the stipulations of the parties, we will not now undertake to decide. But there was an express agreement that the suit should be dismissed, if there was no legal service of process ; and that an exception might be taken to the decision of that question. This amounted to a reservation of the right to test the validity of the exception, by appeal or writ of error. The appellant has the right, by force of the agreement, to assign the decision for error. The judgment of the Circuit Court is reversed, with costs. Judgment reversed.