People ex rel. Jones v. Hiram House

Utah Supreme Court
People ex rel. Jones v. Hiram House, 4 Utah 382 (Utah 1886)
Boreman, Powers, Zane

People ex rel. Jones v. Hiram House

Opinion of the Court

Boreman, J.:

These were both cases of the issuance of the writ of prohibition. The facts and the questions of law are the same in these two cases as in the prohibition case of Ducheneau v. House, ante p. 369, (decided at the present term), except that in these cases now under consideration two questions are raised which are not found in the Ducheneau case. It is claimed that in these two cases the service of the writ was void. Our statutes authorize the service of this writ as ordinary summons is served, and the summons can be served “on the defendant personally, or by leaving a certified copy thereof at his usual place of abode, with some suitable person of at least the age of fourteen.” Laws 1884, pp. 201, 202, sec. 268, sub. 8. The return of the officer on the writ in each of these cases was, as to the objectionable part, as follows: “That I served the same by delivering a certified copy thereof at the usual place of abode of the within-named Hiram House, at. Corinne city, in Malad precinct, county of Box Elder, territory of Utah, with some suitable person, to-wit, *384with the wife of said Hiram House, over tlie age of 14 years, on tlie first day of August, 1885.”

The objection is that tlie service on the wife is not sufficient; that it should have been made on the justice personally. The appellant refers to the following cases to sustain his position, viz.: Pennoyer v. Neff, 95 U. S., 725 et seq.; St. Clair v. Cox, 106 U. S., 350; Webster v. Reid, 11 How., 460. We do not think that either of the cases supports the position of appellant. Service by publication in attachment suits does not affect property not attached, nor does it warrant a personal judgment; but such is not this case. The service of the writs was in accordance with the statute, and we do not think that such service is defective.

It is further objected that sufficient notice of the hearing, by service of the alternative writ, was not given, it being only three or four days prior thereto. This is a matter that is necessarily left to the sound discretion of the court or judge issuing the alternative writ. The appellant does not seem to have brought the attention of the lower court to. this fact, nor applied for an extension of time, and the service is certainly not void merely because of the shortness of- time. Nothing appears to show that there was any abuse of the discretion allowed to the court qr judge. We necessarily conclude that there was nothing improper or injurious in the fact of so short a notice. The judgments in both cases are therefore affirmed.

Powers, J., concurred. Zane, C. J., dissented.

Reference

Full Case Name
THE PEOPLE OF UTAH TERRITORY, ex rel., JOHN JONES v. HIRAM HOUSE, a Justice of the Peace, Appellant THE PEOPE OF UTAH TERRITORY, ex rel., ALLEN HUNSAKER v. Same
Cited By
2 cases
Status
Published