
    PROCESS.
    [Franklin (2nd) Circuit Court,
    December 2, 1912.]
    Dustin, Allread and Femeding, JJ.
    State, ex rel, Atty.-Gen. v. Hocking Valley Ry., et al.
    1. Service upon Agent of Railway Company Defective if Return Falls to Show Railroad in County or Persons Served Agent thereof.
    A return of service of summons upon an agent of a railway company is defective, if it is does not show that the agent served was the agent of the company in the county in which the service was made and that the road runs into or through that county.
    2. Optionabie to Fix Return Day on Summons to Other County on Third or Fourth Monday.
    A party causing a summons to issue to another county has the option to fix the return day on the third or fourth Monday, when he has reason to believe the usual return day will not allow time for service'.
    Motion to quash service.
    
      Timothy S. Hogan, Atty.-Gen., M. A. Dmgherty and Frank Davis, for plaintiff.
    
      Lawrence Maxwell, for 0. & 0. Ry.
    
      Wilson & Rector, for H. V. Ry.
    
      Doyle & Lewis, for L. S. & M. S. Ry.
    
      T. P. Linn, for K. & M. Ry.
   DUSTIN, J.

We are of the opinion that the third point urged in behalf of the motion to quash the service on the Chesapeake & Ohio is well taken, viz., that the return does not show service upon defendant’s agent in a eounty through or into which such road passes; or that the agent served was an agent in said county.

Nor does the fact appear in the petition that the said defendant operates its road in Hamilton county; and we can not take judicial knowledge of it.

We construe See. 11283 G. C. as permitting the ■ party causing a summons to be issued to another county to have it returnable on the third or fourth Monday, at his option, if he finds or believes that the fixing of the usual return day will not allow sufficient time for service.

It is entirely for the benefit of the party issuing the service, and the party served can not complain if the earlier and usual day is selected.

Motion to quash service sustained.

Allread and Ferneding, JJ., concur.  