Pilie v. Kenner

Martin, J., delivered the opinion of the court. The defendant is appellant from a judgment by default, and prays the reversal, on an allegation that he was not legally cited. The sheriff’s return on the citation, is in the following words: “ Served petition and citation on H. B. Kenner, by leaving the same at his domicil, with Mr. Green, his agent, he being absent.” It appears to us, that the service of petition and citation was not legally made ; it not being stated in the return of the sheriff, that the person with whom the citation was left [572] ce was living in the house. ” Code of Practice, 189. Nor “ where the domicil, or the house inhabited by the defendant, is situated.” Idem., 201. It will suffice to make service on the agent, if the agency appear in or by the petition; but not otherwise. The person with whom the process was left, is stated tobe the agent of the defendant. This would have sufficed, if the agency had, appeared in the petition. 'Idem., 196. But this is not the case. As it does not appear that the defendant was legally cited, all the proceedings against him in the court below were without foundation; consequently null and void. It is, therefore, ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and the case remanded for further proceedings, according to law; the plaintiff and appellee paying the costs of the appeal