The sun. [volume] (Morris, Stevens County, Minn.) 1882-1895, 1888-01-05
COURT DECISIONS.
st. Paul Harvester Works, }

81. faui harvester Wofks,
Va
f. II. Bonstad.
Plaintiffs motion. 10 strike out defense
dslied
EzraG. Valentine, for plaintiff.
LYMAN B. Everdell for defendant.
MExoRAsDrA.
A party cannot both reply to and
move to strike out a defence. ii he
wishes to move 10 strike out, he must
do SO before the time for replying
expires-see rule IL Dist. Court rule
Of practice. The plaintiff having re-
piled to the defense now objected to.
his motion to strike it out is denied.
c. L. BROWN. Dist. Judge.
District Court. Wilkin County.
William L. Pitkin.
Jonathan 4. Petit.
Order made Affirming Judgment appealed
from.
Lyman u. Evcrdell for plaintiff.
Ekra G. Valentine, for defendant.
MEMORANDA.
This is an appeal by defendant from
Justice court Gu questions or law
Mene. The fest question raised by
the defendant is that the writ of
attachment issued by the justice is
void ana the justice acquired no
jurisdiction OF the action because OF
IN omission to Gil a blank therein, to
wit:
The writ, after being properly en-.
titled. reads as follows:
Yen arc hereby co,n@andrd to
attach the goods and chattels etc. Of
Jonathan Z. Petit. or 80 much there
of rs shall be sufficient to satisfy the
sum of iity----with Interest
and costs etc."
The word "dollars" after the word
fifty" is omitted. This point Is
disposed Of by Hines Chamber. %
! MIMI,
The defendant also claims that the
Justice acquired no jurisdiction OF
| the person of defendant, because Of a
defective> service of the writ.
The writ was served by reading the
same to the defendont and also by
delivering to him copy thereof
The original writ was made return
able on the 23rd day of March. hut ir
the copy served the return day il
filed for the 10Th day Of March. The
defendant did not appear before the
Justice, but after the judgment was
entered made this appeal. He nov
presents to the court the copy Of the
writ served upon him and asks thai
this Judgment be reversed for this
defective service. Certain property
was attached under the writ, and
under section 1U5, Chap. IS Genera
Statutes 1873 the defendant rehondei
the same. The plaintiff claims thai
the act of rebonding was an appear
ance in the action by the defendant
and waiver of the questions now
raised.
Iris question is somewhat trouble
some, for while from the facts, thai
by giving the bond defendant did moi
necessarily go before the Justice,-it
being executed TO the officer serving
the wrlt-and that the Justice ha6
nothing to do with it. and that the
defendants failure to appear on The
; return day of the writ is expressly
noted by the Justice in his docket, il
may be legally argued that there wa:
anything but an appearance in the
action; still ny the act Of giving the
bond the defendant admits valie
attachment against him. See Scanlor
v O'Brien. 3. MIMI. 434. But III The
view take of the case it is unneces
sary TO determine this point. Geni
Statutas Chap. IS. sec. III, provide:
that '.upon an appeal upon question:
OF law alone, the action shall be tried
in the District Court upon the return
Of the Justice" It not appearing
from the retain of the Justice thai
there was any defect in the service
of the writ, the point that true
copy of the writ was not served il
determined adversely to the defend
ant. The copy of the writ served
cannot now be received to impeacl
the Judgment, because the action
must be determined on the return Of
the justice and this copy of the writ
is no part Of that return. IF the de
PENDANT has any remedy 1t is against
the officers, but in the light Of Scan
lon q Brien it would seem doubtful
whether he has any.
/ G. l.. BROWN. Dist. Judge.
|