McLaughlin v. Wheeler

Citations

• 2 S.D. 379
• 50 N.W. 834
• 1891 S.D. LEXIS 45

Syllabus

<p>1. Section 4993, Comp. Laws, which authorizes an attachment “in an action,” provides, among other things: “And for the purposes of this section, an action shall be deemed commenced when the summons is issued; provided, however, that personal service of such summons shall be made, or publication thereof commenced, within thirty days.” Held, that the vitality of the attachment beyond the 30 days depends upon compliance with this condition.</p> <p>2. At the expiration of the 30 days, the summons in this case not having been personally served, or its publication commenced, the statutory support ceased, and the attachment went down.</p> <p>3. Section 6247, Comp. Laws, prohibiting the “service of legal process of any description whatever” on Sunday, applies to and covers a summons; for by Section 4807, Id., “process” is made to include “a writ or summons issued in the course of judicial proceedings.”</p> <p>4. The publication of a summons against a non-resident, under Section 4900, Comp. Laws, constitutes the “service of legal process,’’within the meaning of said prohibitive Section 6247; a.nd, where the only publication within the limited 30 days is one made on Sunday, the publication is not commenced within 30 days, and the attachment then fails, and a defendant is entitled of right to release of attached property. 1 S. D. 497, modified.</p> <p>(Syllabus by the Court.</p>