President of the Ohio & Mississippi Railroad v. Boyd

Worden, J. Suit by Boyd against the company, for killing stock upon the road. The complaint was filed on September 23, 1859. On the same day, a summons was issued and served, returnable at the next term of the Court, which commenced on the first Monday of October, 1859. The summons was served on a conductor. On the cause being called, the defendant, by her attorneys, without appearing to the action, moved to continue the cause until the next term of the Court, because process had not [439] been served thirty days before the term of Court, the principal office of the defendant not being in the State of Indiana. It being admitted by the plaintiff, says a bill of exceptions, that' the principal office of the defendant was not within the State of Indiana, but was in the State of Ohio, and that the company had no business office in said county of Jennings. Theodore Oazlay and L. Bingham, for the appellant. The motion was overruled, and exception taken; and such further proceedings were had as led to a judgment for the plaintiff. The ruling of the Court, we think, was wrong. We have a statute which provides, “That all writs, warrants, or other ■process issued, or to be issued, from any Court of competent jurisdiction, ip this State, against the President of any railroad company whose principal office is not within this State, may be served upon a'ny officer, director, attorney or general agent of said company, and such service shall be as binding and of the same effect as if the same had been served upon the President of the companyProvided, further, that at least thirty days notice shall be given of the time and place of the pendency of said suit.” Acts 1853, p. 102. This statute, we think, requires service, in cases therein provided for, to be made thirty days before the term of the Court to which the process is returnable; or if not made thirty days before the term, the service will be good, but the cause will stand over until the next term. Where process has been served ten days before Court, perhaps the defendant would be deemed properly in Court at that term, unless it were made to appear that the principal office of the defendant was not in this State. Here, this fact was made to appear by the admission of the plaintiff, and the cause should have been continued. Vide, on this subject, the case of The Michigan Southern, ’ &c. Railroad Company v. Shannon, 13 Ind. 171. Per Curiam. The judgment is reversed, with costs. Cause remanded, &c.