Moyer v. Cook

By the Corrt,

Jf the amendment of the sheriff’s return according to the facts, would have shown a good service, so as to. authorize the entry of the judgment by the clerk, it should have been allowed. But we-do not think the amendment proposed would show such service. Section 27, chap. 132, R. S. 1858, ■ authorized an entry of judgment by the clerk only on filing proof of u personal service.” Sec. 9, chap. 124, provides that the summons shall be served by delivering a copy “ to the defendant personally,” or if not found, by. leaving it at his usual place of abode, &c. We think the personal service required by sec. 27, chap. 132, is only that where the copy is delivered to the defendant personally, as required, by sec. 9, chap. 124, and not that where it is left at Ms place of abode. This is the strict meaning of personal *337service. It is tbe actual delivery of tbe process to tbe defendant in person, as distinguished from other modes of vice which the law allows.

It was argued with some force by the appellant’s counsel, that as the other subdivisions of sec. 27 provide only for an application to the court for judgment where the service was by publication, it is to be presumed that the legislature intended by “personal service ” in the first subdivision, all other modes of service except that by publication. But as the validity of this first subdivision, in authorizing a judgment without the intervention of any judicial officer whatever, has been questioned, and was sustained last term by a divided court, we are inclined not to extend it by construction beyond what its words clearly import. And we hold, therefore, that the personal service there required is an actual service upon the defendant. In case of service by copy left at the defendant’s place of abode, the plaintiff should apply to the court for judgment.

The order appealed from is affirmed, with costs.