Summary
holding service insufficient where marshal's affidavit did not state where service was made or that person served was "of suitable age and discretion"
Summary of this case from Robinson Eng. Co. Pension Plan v. GeorgeOpinion
No. 2115A.
July 15, 1940.
Maurice Goldman, of Buffalo, N.Y., for plaintiff.
Cleveland W. Crosby, of Lackawanna, N.Y., for defendants.
Defendant appears specially and moves to set aside the service of the summons upon the defendant Stephania Wiencek on these grounds: (1) that a prior suit was brought and is now pending for the same cause set forth in this suit; and (2) that service of the summons and complaint was insufficient.
As to the first ground, it appears that there are not two actions pending. Service was heretofore made upon the defendant Edward Wiencek in this action and such is the only service upon him. The claim of the defendant that two actions are pending is apparently based upon the ground that the service herein now sought to be set aside was upon the defendant Edward Wiencek. This, as hereafter stated, is held to not be the fact.
As to the second ground, the service upon the defendant Stephania Weincek as appears from the certificate of the marshal is insufficient. Rule 4(d)(1) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, permits service, other than personal service, under certain conditions. These conditions are that it must be left with some person of suitable age and discretion at the dweling house of the party to whom it is served to one residing therein. The certificate of the marshal reads: "that on 10th day of Nov 1939 I received the within summons and complaint on Nov 21st 1939 served Edward Wiencek for his Stephania Wiencek." The certificate here should show where the service was made and that the person served was one of suitable age and discretion.