Epitomized Opinion

A petition in error and a precipe were filed and summons issued. The return of the sheriff showed no service on Krumeich; Anderson and Ormsby were his attorneys. The sheriff left a copy at Ormsby’s usual place of residence. When the sheriff called at Anderson’s office, he being busy, the officer left the summons with an attendant, with the request that it be given to Anderson, which was done, within seventy days. As soon as the seventy days elapsed defendant filed a motion to quash the service; the attorney accepted a brief from plaintiff’s attorney on the merits and receipted therefor, and defendant’s attorney filed a brief on the merits.

Held:

1. Service under 12259 GC. must be personal service, and cannot be made by leaving at the usual residence or with an attendant to be delivered to party. Summons must be handed to the person by the officer.

2. Receipting for brief on merits and filing brief on merits of case is not waiver of service of summons in error, or the entry of an appearance.

3. Summons must be served personally or entry of appearance made within seventy days.