Cooke v. Baker

This case is heard upon the plaintiff’s demurrer to the defendant’s plea in abatement and upon the motion of the defendant to dismiss the plaintiff’s demurrer to said plea.

The question for decision is whether or not' a resident defendant can be served with a District Court writ wherever he may be found outside the district in which he resides.

There is good reason to think that the Legislature intended to provide that a resident defendant must be served with process in the district where he resides to give jurisdiction to an action brought by a non-resident plaintiff. In other words, that when the Legislature provided that a defendant must be summoned in the district where he resides or wherever he may be found, it .had in mind the *3two classes of resident and non-resident, and intended that a resident defendant should be served in the district where he resides and a non-resident defendant wherever he might be found. The authorities, however, give a literal meaning to the words of the statute and such seems to be the practice of the Bar.

The defendant’s motion to dismiss the plaintiff’s demurrer is overruled and the plaintiff’s demurrer to the defendant’s plea in abatement is sustained.