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HARRIS V. HARDEMAN, 55 U. S. 334 (1852)

U.S. Supreme Court

Harris v. Hardeman, 55 U.S. 14 How. 334 334 (1852)

Harris v. Hardeman

55 U.S. (14 How.) 334


A statute of Mississippi directs that where the defendant cannot be found, a writ of capias ad respondendum shall be served, by leaving a copy thereof with the wife of the defendant or some free white person above the age of sixteen years then and there being one of the family of the defendant and found at his usual place of abode or leaving a copy thereof at some public place, at the dwelling house or other known place of residence of such defendant, he being from home, and no such free white person being found there willing to receive the same.

The circuit court of the United States adopted a rule that the capias should be served personally, or, if the defendant be not found, by leaving a copy thereof at his or her residence or usual place of abode at least twenty days before the return day thereof.

The marshal made the following return to a writ of capias: "Executed on the defendant Hardeman, by leaving a true copy at his residence."

This service was neither in conformity with the statute nor the rule.

Therefore, when the court gave judgment by default against Hardeman and an execution was issued, upon which a forthcoming bond was given, and another execution issued, and at a subsequent day the court quashed the proceedings, and set aside the judgment by default, this order was correct.

When the judgment by default was given, the court was not in a condition to exercise jurisdiction over the defendant, because there was no regular service of process, actual or constructive.

The cases upon this point examined.

Moreover, when the proceedings were quashed, they were still in fieri, and not terminated, and any irregularity could be corrected on motion.

The facts are stated in the opinion of the Court.

Page 55 U. S. 337

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