Farris v. Powell

BALDWIN, J. The plaintiff filed his petition in this cause, praying the appointment of referees to admeasure and set apart to him his proportion in certain real estate, owned jointly by himself and defendants. The defendants failing to appear and answer said petition, a default was entered against them. Referees were appointed and upon their report a decree was rendered by the District Court, as prayed for in said petition. The defendants appeal, and assign as error that the court had no jurisdiction over them, as they had never been properly served with any notice of the proceedings by plaintiff. The return upon the original notice in said cause reads as follows: “ Service on the within named defendants, by reading in their hearing, this 18th [554] day of February, 1858. Service on Wm. Powell, 50; mileage, 90; do. Flecke, 25; mileage 10; on Haverstick, 25; mileage, 10; $210. J. G. Ellis, Sheriff.” The return does not show whether a copy of the notice and petition was demanded or given. Section 1728 provides that “ the return must state the time and manner of making the service.” “ If served personally, it must state whether a copy of the petition was required,” &c. The only safe rule in cases where jurisdiction depends upon the process, is to require a strict observance of the statute. 1 G. Greene 346. Where the defendant is served personally, the return should show whether a copy of the notice and petition was required or not. 5 Iowa 387; 6 Ib. 1. The manner of service must be shown, and a return that a notice was duly served is not sufficient. 6 Iowa 78. We think this return is clearly defective, and if there was no legal service the court had no jurisdiction. Judgment i'eversed.