Majority
p. 592Ex parte Green vs. Oneida Common Pleas.
Headnote
Where a suit is commenced by declaration, in the common pleas of one coum ty, the copy of such declaration cannot be served on the defendant whilst in another county.A suit was commenced in the Oneida common pleas by the relator against one White, by the filing of a declaration» White’s domicil was in the county of Oneida, but he was engaged at the time in the building of a house in the county of Madison, where a copy of the declaration was served upon him. Upon this service a default was entered, judgment obtained, and execution issued. On the motion of White, all proceedings in the suit subsequent to the filing of the declaration, were set aside by the common pleas for irregularity. Green asked for a mandamus, directing the common pleas to vacate the rule setting aside the proceedings.
By the Court,
The common pleas did right in setting aside the proceedings. Where a suit is commenced in the common pleas of one county, the declaration cannot be served in another county. The provision in the statute that the service of a declaration may be by a sheriff, and that he may be ruled to return it, Laws of 1833, p. 394, § 2, implies ¡that the service is to be in the county in the court of which
p. 593
the declaration is filed. A declaration in a suit .commenced by declaration is analogous to process, and process in a suit commenced in the common pleas of one county cannot be served in another. It would not be the regular and orderly conduct of a suit to file a bill against an officer of a court in one county, and serve him with a copy of such bill in another, and upon the same principle the service of the copy of the declaration in this case was irregular.
Motion denied.