Story v. Ware ex rel. Mayes

Smith, C. J., delivered the opinion of the court. This suit was brought by Russell P. Ware, for the use of Daniel Mayes, to recover damages for trespasses, alleged to have been committed upon land, which, at the time of their commission, was the property of the former, but which subsequently had been sold and conveyed to .the latter. The declaration was filed on the 12 th of May, 1857, and a writ issued, returnable to the following term. At the return term, upon motion of the defendant, the writ and sheriff’s return were quashed, and an alias was sued out. At the return of which, a motion was again entered to quash the writ and sheriff’s return, which was overruled. Whereupon, and on the same day, the defendant applied for leave, and moved the court to be permitted to plead to the action. His application was refused, and the motion overruled; and judgment by default was entered, and a writ of inquiry was awarded at the instance of the plaintiff. The exceptions taken to the judgment entered upon the verdict of the jury of inquiry, point to these acts of the court. It is insisted, first, that the court erred in overruling the motion to quash the return to the alias writ; and secondly that there was error in overruling the motion for leave to plead to the declaration. The first exception is clearly untenable. According to the return, the plaintiff in error was informed by the sheriff that he‘ had a writ for him in the case, and offered to deliver to him a true copy of the same, which was refused. The sheriff then attempted to read the writ to the plaintiff in error, which he refused to hear, but walked away. This was all that could be done by the sheriff; certainly it was all that the law required him to do. Under these circumstances, it would be trifling with the majesty of the law, to allow the party to insist upon a want of notice, or the insufficiency of the service of the process. The motion to quash was made at the return term of the alias summons. As there was no service of the process which had issued to the preceding term of the court, the term at which the alias was returnable, was the return term of the suit. Unquestionably, therefore, the plaintiff in error had a right to answer or plead to the action during that term. It would be absurd to hold that the right to plead was lost, by entering the motion to quash the return to the summons. It is, hence, certain, that the court erred in [401] refusing the application, and overruling the motion for leave to plead. For this error the judgment is reversed, the verdict set aside, and the cause remanded for a new trial.