Knowles v. The Gaslight and Coke Company

delivered the opinion of the court.

Upon the first point, that the return was insufficient, the plaintiff’ in error relies on a decision of Mr. Justice Nelson at the circuit, in the case of Allen v. Blunt, in which it is supposed to have been held that a return of service by the United States marshal, without showing that the service was made in his district, was insufficient to give the court *61 jurisdiction of the person. What Justice Nelson held in that case was this: that inasmuch as the eleventh section of the Judiciary Act declares that “no suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ;” therefore, the jurisdiction of said courts depends on service or inhabitancy in the district, one of which should appear of record; and inasmuch as the record in that case contained no allegation on the subject, and the jurisdiction of the court depended entirely on the marshal’s return to the process, the return was insufficient to give it. This authority, therefore, is not in point. The case was in the United States court, and depended upon the peculiar phraseology of the act of Congress referred to therein; whereas the case in Cass County, now under consideration, was in a State court; and it is familiar law that a court of general jurisdiction will be presumed to have had jurisdiction of the cause and the parties until the contrary appears. In our judgment, therefore, the return, on its face, shows no ground of error. It will be presumed that the service was made in the proper county.

But the defendant also offered to prove by himself and Harvey that neither of them had ever in fact been served with process, and that, in consequence, the court had never, as to them, acquired jurisdiction of the person.

As this subject has been lately considered by us in the case of Thompson v. Whitman, it is unnecessary to go.over the subject again. In our opinion the defendant had a right to show by proof that he had never been served with process, and that the Circuit Court of Cuss County never acquired jurisdiction of his person. As this was refused him on the ground that the evidence was-inadmissible, the judgment must be reversed. We do not mean to say that personal service is in all cases necessary to enable a court to acquire jurisdiction of the person. Where the defendant resides in the State in which the proceedings are had, service at his residence, and perhaps other modes of constructive service, *62 may be authorized by the laws of the State. But in the case of non-residents, like that under consideration, personal service cannot be dispensed with unless the defendant voluntarily appears.

JUDGMENT REVERSED, and a

Venire de novo awarded.