Miller v. Mills

Breese, J. It is provided by section 7, chapter 21, that service of summons in chancery shall be made by delivering a copy thereof to the defendant, or leaving such copy at his usual place of abode, with some white person of the family, of the age of ten years or upward, and informing such person of the contents thereof, which service shall be at least ten days before the return day of such summons. (Scates’ Comp. 139.) The return in question is as follows: “ I have served this summons on the within named Hiram Miller, by leaving a true copy of the within with Ellen Miller, his wife, a person over fourteen years of age, a member of his family, at his usual place of abode, after first having fully made known the contents of the same to her. this 24th March. A. D. 1862.” We think this return is defective in two particulars. First, it does not show that the copy was left at the usual, place of abode of the defendant, nor that it was left with a white person. Won constat but that it was a family of colored persons, the defendant and his wife both being black. The return states that Ellen Miller, his wife, was a member of his family, at his usual place of abode; not that he served her with the copy at the usual place of abode of the defendant. This return was insufficient to warrant a decree by default. The sheriff should have been called on to amend it if he could. The decree is reversed, and the cause remanded, with leave to the sheriff to amend his return. Decree reversed.