OPINION
BY THE COURTThis case is submitted to this court upon two motions filed by counsel for defendant in error. The first motion asks that the pretended service of summons made upon the defendant in error be quashed.
The second motion asks that the “alias” summons be also quashed.
Without discussing these motions in detail we are clearly of opinion that both are well taken.
When a petition in error is filed the statute, §12259, GC, provides that service of summons shall be made upon the defendant in error, as in the commencement of an action, unless such service is expressly waived. The motion to quash contains the paper which was served upon defendant in error. This motion is supported by the positive affidavit of the agent of defendant in error. The paper so attached to the motion contains what is equivalent to the first. page of the petition in error filed herein.
The statute provides for the serving of a summons upon defendant in error, not a copy of the petition in error or a copy of a portion of the petition in error, but a summons.
In addition to the paper which is attached to the motion to quash the pretended service, as above stated sworn to positively, we have examined the return as actually made by the sheriff. This return does not pretend to show that a summons was served upon the defendant in error, but states that he served defendant in error with a certified copy of the petition.
The service of summons does not conform to the statutory requirements and the motion to quash the pretended service must be sustained.
The motion to quash the “alias” summons must also be sustained, as there is no warrant for serving an alias summons until an original summons has been properly issued.
Both motions must, therefore be sustained.
HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.