Opinion
Decided December 4, 1928.
When a defendant is a known resident of the state and no return of non est inventus has been made, no mode of service of the process is valid other than that prescribed by P. L., c. 331, s. 1, fourteen days before the return day; and in such case if such service has not thus been made an order of notice issued after entry is ineffectual and the action should be dismissed for want of service.
ASSUMPSIT, to enforce a lien upon a school building in Newport. An attachment was made but there was no other service of the writ before entry. Charles W. Keith, a resident of Nashua, was the principal contractor, and the plaintiffs were sub-contractors. Keith died, and Dora L. Keith was appointed executrix of his will before the suit was brought. The writ was entered, and an order of notice against her was thereafter issued and served. She appeared specially, and excepted to the denial of her motion to dismiss the suit as to the estate.
Transferred by Matthews, J.
Warren, Howe Wilson, for the plaintiffs.
Jesse M. Barton, for Newport.
Hamblett Hamblett, for Keith, executrix.
When the defendant is a known resident of the state, service of process must be made fourteen days before the entry of the writ. P. S., c. 219, s. 1; P. L., c. 331, s. 1. No other mode of service has been provided for such cases. The statutory provisions for an issuance of an order of notice after the entry of the writ all relate to cases of a non-resident or one whose residence was unknown to the officer to whom the writ was committed for service. Martin v. Wiggin, 67 N.H. 196.
This decision governs the present case. The usual, if not indispensable, evidence of an excuse for not making service (Burney v. Hodgdon, 66 N.H. 338) is lacking. The sheriff made no return non est inventus. As the reported facts show that there was no ground for such certification, the questions whether it could be made now, or whether an order of notice might issue without it on proof of appropriate facts, are not considered. The motion to dismiss the suit as to the Keith estate for want of sufficient service should have been granted.
Exception sustained.
All concurred.