Campbell v. Spencer

Headnote

It is bad service to unlock a door of an office and leave the papers therein, no person at the time being in the office; under such circumstances, service should be made in „ some other way.

Motion by defendant to set aside report of referees.—The notice that this cause would be brought to a hearing before the referees, was served on defendant’s attorney by plaintiff’s attorney, on the 14th day of March, 1845, and stated in the affidavit of plaintiff’s attorney, to be as follows: “ By leaving such notice in the office of said Martin, in a conspicuous place therein, no person being in said Martin’s office at that time, to wit, by laying such notice upon a book lying upon the table of said Robert H. Martin, defendant’s attorney, being the same table at which said

Martin usually sits; that at the time of such service he found the key of the said Martin’s office in the door thereof.” Defendant’s attorney stated he never saw or knew of, or in any manner received any notice of hearing in this cause, and knew nothing of it until the morning of the 28th March, the day the cause was to be tried before the referees, when he accidentally found the cause was to be tried. It appeared by defendant’s affidavits that Robert H. Martin, Esq., defendant’s attorney, was taken suddenly sick on the 12th March, aforesaid, and so continued for a number of weeks; that Lewis A. Cole, Esq., kept an office of his own • in the same office and room with said Martin, and was requested by Martin to watch for any papers left for or served upon him, Martin, and if any, to let him know immediately. On the 12th and 13th March, Cole was in the office, and when he left, he locked the office and hung the key under a sign. Cole swore that on Thursday, the 13th March, he left the office in the afternoon and locked the door, and hung the key in the usual place, under the sign, that he was taken unwell that day, and did not go to the office again until Wednesday, the 19th March, when he went and found the key hanging where he left it, under the sign, and the office locked. Martin was at that time sick, and unable to leave his house.