Public-domain · open source
OpenJurist

6 N.H. 217

Foster v. Hadduck

Superior Court of New Hampshire

Decided July 15, 1833

Superior Court of New Hampshire · decided 1833-07-15

This was a writ of error brought to reverse a judgment of the court of common pleas in this county. It appeared by the record of the judgment and proceedings in the court below, that Hadduck brought an action, against J, P. and Caleb Foster, and another, his trustees. The officer who served the original writ made a return of his doings as follows “ State of New Hampshire, Grafton, ss.

Good law ✅— No negative treatment on recordhow we know

Decided 1833-07-15

How this case has been cited

Cited by 4 later decisions — most recently December 1901

4 state decisions

2018331840185018601870188018901900decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Richardson, C. J.

¶1delivered the opinion of the court.

¶2The writ, in a case of foreign attachment, is to be served upon the trustee in the manner writs of summons are *218served in other cases. The statute declares that writs summons shall be served by reading the same to the or by leaving an attested copy thereof, with a copy of the return endorsed thereon, at the last and usual place of the defendant’s abode.

¶3The copy left in this case does not appear, by the officer’s return, to have had the officer’s return upon it, and instead of being left at the house of the trustee, was given to him in person.

¶4It Ims been decided, that giving the summons to the party in person, is equivalent to leaving it at his place of abode.

¶5Cut can any service sustain a judgment rendered upon a default which is not substantially what the statute requires ?

¶6It is provided by statute, that the summons left with the defendant, when his goods or estate is attached, shall contain certain things and be endorsed by the officer, and it is declared that for any failure in this respect the writ shall abate. And it has always been held, that if such defect be not pleaded in abatement, it is waived. But this rests on the ground that the statute has declared what shall be the effect of any omission to comply wills its requisitions in this respect.

¶7When there is any substantial defect in the service of a writ, the defendant may appear and answer to the action, and this will cure any defect in the service.

¶8Or, he may appear and plead in abatement a defective service, and thus stop the suit. 7 Mass. Rep. 29; 12 ditto, 36.

¶9Or, he may refuse to appear, and if the plaintiff pro ceed, may bring a writ of error and reverse the judgment. 8 Pickering, 163; 3 N. H. Rep. 198.

¶10In this case, judgment was rendered upon a default, and the service does not appear to have been what the statute required. Is the judgment erroneous ?

¶11It has been decided in this court, that it is not enough *219that the defendant has had notice of the suit. If he has not had notice in the manner the statute prescribes, it is error. 3 N. H. Rep. 198.

¶12And we are of opinion that there is error iu this judgment.

/6/nh/217 · .json · Public domain