Dutton v. Hobson
Supreme Court of Kansas
Error from, Miami District Court. On the 26th of April, 1870, Hobson filed his petition and precipe in the office of the clerk of the district court, for the commencement of an action against Hutton to recover possession of a certain tract of land. A summons was issued and made returnable on the 5th day of May.
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Error from, Miami District Court. On the 26th of April, 1870, Hobson filed his petition and precipe in the office of the clerk of the district court, for the commencement of an action against Hutton to recover possession of a certain tract of land. A summons was issued and made returnable on the 5th day of May. The summons was issued against L. J. Dutton; and the sheriff’s return shows that he served it on the return-day, (April 5th,) and.by delivering a copy to' “ L. A. Dutton.” The defendant failed to appear, and after the answer-day had passed plaintiff moved for and obtained judgment upon…
1Opinion of the Court
The opinion of the court was delivered by
Kingman, C. J.:
The judgment in this case was on default, and no exceptions were taken. Two errors are alleged : First, the summons was not served before the return-day: Second, the action was against L. J. Dutton ; the summons is returned served on L. A. Dutton.
The summons was issued on the 26th day of March, to the sheriff of Miami county, and was served on the 5th day of April. This was the return-day, while the statute limits the service to “ any time before the return-day.” §64, civil code. The statute is positive. ¥e cannot construe it away, nor…
2Cited by12 opinions
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- Nelson v. BeckerSupreme Court of Kansas · 1875
- State ex rel. Blake v. DunnSupreme Court of Kansas · 1925
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