Carswell v. Patzowski — 19 Del. 593

Majority

p. 593

Frank R. Carswell vs. Richard Patzowski, Owner or reputed owner.

Headnote

Mechanic’s Lien—Scire Facias; Service of—Sheriff’s Return— Statute; Construction of—Practice.

Under the statute (Rn. Code, 820) providing for the service of a scire facias upon a mechanic’s lien, service must be made upon the defendant, also copy left with some person residing in the building if occupied as a place of residence; and if not so occupied it shall be affixed upon the door or other front part of such building.

(September 18, 1902.)

Lore, C. J. and Spruance and Boyce, J. J., sitting.

Herbert H. Ward for plaintiff.

Robert H. Richards and William S. Hilles for defendant.

(Special appearance for the purpose of making a motion).

Superior Court, New Castle County,

September Term, 1902.

Scire Facias upon a Mechanic’s Lien (No. 9,

September Term, 1902).

Motion to quash and set aside the service and return of the scire facias issued in the above stated cause.

The sheriff’s return was as follows :

“ Made known personally to Richard Patzowski, owner or reputed owner, July 1st, 1902. So answers Samuel A. McDaniel, Sheriff.”

Mr. Hilles:

This is a scire facias upon a mechanic’s lien. The statute {Rev. Code, 820) providing for service of this writ, . says: The said writ shall be served in the same manner as other writs of scire facias, upon the defendant therein named, if he can

p. 594

be found within the county; and a copy thereof shall be left with some person residing in the building, if occupied as a place of residence;' but if not so occupied, it shall be the duty of the sheriff to affix a copy of such writ upon the door or other front part of such building.

The statute having provided for the mode of service, and it being a proceeding in rem, with a possibility of the copy being served upon some one else other than the defendant named in the case, there is a strong reason why the statute should be construed strictly.

50 Md., 226 (232).

The statute requires two things to be done; the return of service shows that but one thing was done, viz., service on the defendant. We make the order to vacate the return of the sheriff.