Hammond v. Olive

Citations

• 44 Miss. 543

Syllabus

<p>1. Requisites to qood seuvice — ’Undeb law: or 1867. — The return of the officer on the summons must show affirmatively, a compliance with the requirements of the statute; he must make personal service if praoticablo, before he can resort to the secondary mode of leaving a copy at the domicile of the defendant j and he must declare in his return that the party “could not be found,” Foster v. Simmons, 40-Miss., 585, and cases cited.</p> <p>2. Same. — -To make service by “ copy at defendant’s usual place of residence ” complete, the return must show that every condition of the statuto has been complied with. It must declare, first, that the defendant “ could not be found; ” second, that the copy was left with the wifo of defendant, or with some other free white person above the age of sixteen years; third, if there was no such person there willing to receive the same, then the copy may be left at some public place at the dwelling house. The second mode of service cannot be adopted if the first can be made, nor the last until both the others have failed. And the officer, it he adopts the last mode, should manifest by hia indorsement on the writ of “his acts under it,” that he could not make personal service because defendant “ could not be found; ” and that he did not leave a copy with the wife or some other free white person, etc., because no such person was at the abode, or would accept the copy.</p> <p>3. Same. — A return liy the officer, “executed by handing a copy to W. J. H., a member of the family, over eighteen years old, at the residence of E. M. H., defendant, he being absent,” is clearly defective under the Revised Code of 1857, in not stating thatw. J. H., was a “free white person;” and also, because it does not negative his ability to make personal service, by stating that the defendant “ could not he found ; ” the words, “ he being absent,” do not import that “he could not ho found.”</p>