Comstock v. Paie

Mastín, J. delivered the opinion of the court. This is an appeal from a judgment setting aside an order of sequestration. The dismissal of the appeal is prayed for on the ground that service of citation was improperly made on the attorney of one of the appellees and no service was made on the other, because he could not be found. The sheriff ’? return shows that as to the first appellee, “ he was absent from the State non constat, whether this absence was temporary or permanent. The petition of appeal shows that both appellees reside in the State. This might have been, but was not elred out by evidence. According to the late act of the legislature, passed the 20th March, 1839, the irregularity, if any exists, does not authorize the appellee to demand a dismissal of the appeal, but requires that time should be given to correct it. It is further ordered, that time be allowed until the first Monday in May next, to make new service of citation and petition of appeal on the appellees.