The substance of sections 4236 (2596) and 4237 (2597) C.G.L., providing for the issue and for the service of process, was first enacted in the Act of November 23, 1828. See page 27 et seq., Acts of 1828.
By an amendment in section 5, Chapter 1938, Acts of 1873, and Chapter 5148, Acts of 1903, process when issued should be made returnable, not to the next term of the court as originally, under the act of 1828, section 5, but as it now is, "to the next rule day thereafter, unless there shall not be *Page 330 ten days intervening between the day of the issuing of the same and the next rule day, in which case the same shall be made returnable to the rule day in the next succeeding month." Smith v. Bowden, 23 Fla. 150, 1 So. 173.
The provision that process "shall be served at least ten days before rule day to which it is made returnable" remains as originally enacted in 1828 and as the time of ten days' service before appearance is required, rather than the return day of the writ, more directly bears upon the acquisition of jurisdiction of the defendant, the provision as the time of service should control the construction of the two cognate provisions of the statute. This makes mandatory the provision that process "shall be served at least ten days before the rule day to which it is made returnable," while the provision that process when issued "Shall be made returnable to the next rule day thereafter, unless there shall not be ten days intervening between the day of the issuing of the same and the next rule day," is directory. This seems to have been the rule of practice in some if not all the circuit courts of the State and it accords with reason in the service of process to acquire jurisdiction of a defendant in a cause.
If the amendment by Chapter, 1938, Acts of 1873, intended the return day of process when issued to be at least ten whole daysafter the day of the issue, and not on the tenth day after issuance, it is quite probable that this was done to enable theservice of the process to be made "at least ten days before the rule day to which it is made returnable," since in 1873 some of the counties of the State were so large in area and the means of travel to serve process were so slow and difficult that service of process then could not always be made the same day it was issued.
However, it seems clear that as service of process ten days before appearance required, and not the date of the issuing of the process, more vitally affects the securing of jurisdiction *Page 331 of a defendant in a cause, the essential statutory provisions as to time of service of process before appearance day, should be held controlling and mandatory, and any doubtful or inconsistent provision as to the date of issuing the process before the returnday stated in the process should be held to be directory and not to ipso facto render service duly made ineffectual to acquire jurisdiction of the defendant and to make void a final judgment if the defendant did not appear in the cause.