Morris v. Morris

27 Del. 431 4 Boyce 431 Court Superior Court, Sussex County, Decision date 1913-10-14 English

Delivered by Boyce, J.:

Contents

Majority

p. 431

Harry C. Morris vs. Pearl Morris.

Headnote

Time—Service of Summons.

Under the statute providing that summons in a divorce action shall issue for defendant’s appearance, and on proof of service more than twenty days before the time of its return, or on proof of substituted service by publication, the cause shall proceed to trial, the twenty days must be exclusive of the day of service and return.

(October 14, 1913.)

Judges Boyce and Rice sitting.

Albert Worth for plaintiff.

(The defendant was unrepresented.)

Superior Court, Sussex County,

October Term, 1913.

Action of Divorce (No. 18, October Term, 1913) by Harry C. Morris against Pearl Morris. On objection to insufficiency of service. Petition dismissed.

See also, 2 Boyce, 583 .

In this case there was personal service on the sixteenth day of September, 1913. The present term of court began on the sixth day of October following. Between the date of service and the day of the return, being the first day of court, there were only twenty days including the day of service prior to the return of the writ.

The statute provides that “summons shall issue for the defendant’s appearance and upon proof of the service of such summons more than twenty days before the time of its return or upon proof of substituted service by publication as hereinafter provided, the cause shall proceed to trial.’’ * * * 24 Del. Laws, c. 221, § 7.

p. 432

We hold that the words “summons more than twenty days before the time of its return” mean at least twenty days exclusive of the day of service and return.

What is your application, Mr. Worth?

Mr. Worth:—I ask that the petition be dismissed.

Boyce, J.:—Let the petition be dismissed.