Bacon v. S. Bevan & Co.

44 Miss. 293 | Miss. | 1870

SlMRALU, J'.:

The points for decision in this case are, 1st. As to the sufficiency of the service of the writ upon W. T. A. Bacon; 2d. Could any judgment be rendered against him; 3d. Was the service good as to Mrs. H. T. A. Bacon, and could the plaintiff, if the service was proper, take judgment against her by default, she being a married woman.

We think the return of the sheriff as to the manner he executed the summons on Mrs. Bacon discloses a substantial compliance with the statute. We are not inclined to indulge nice criticisms of the words used by the sheriff in describing the act done. If it can fairly be inferred from his return that he met the requirements of the law it will suffice.

In Harris v. Bestic, 1 How., 106, the defendant subscribed his name to a written acknowledgement of service on the writ. This was not sufficient without proof of the signature of the party. Such written acknowledgement can be little, if any better, than his verbal admission, and would have to be proved in the same way.

In Davis v. Jordan, 5 How., 255, the indorsement on the writ was, “ service acknowledged,” which was signed by defendants, which was not good without proof of the acknowledgement.

The service made on the defendant, W. A. Bacon, was a ■written acknowledgment signed "by himself. Judgment by default final was rendered against both defendants without proof of the acknowledgment of service as to W. A. .Bacon, which brings this case precisely within those quoted.. In Bozman et al. v. Brown, 6 How., 45, where there was no service as to two defendants, and they were included in the judgment against those who were served, it was held to be error.

For another reason this judgment is fatally defective. The declaration discloses no cause of action against W. A. Bacon. The suit is by the payees against the maker of the note. The note is averred to have been made by H; T. A. Bacon, wife of the said W. A. Bacon. The husband was a proper party for conformity to enable his wife and aid her in the defense. But there was no liability on him for the debt. However regular the service might have been, judgment quod recuperet could not go against him. It is suggested by counsel for plaintiffs in error that recovery cannot be had on the note against the wife. That may- or may not be so, according as the transactions may have been, which gave origin to the note. The wife, on return of the case into the circuit court, may plead her coverture (if so advised), which plea may be avoided (if the facts will warrant) by replication. In this mode, according to a case recently decided by us, in conformity to a prior adjudication, the whole merits may be opened up.

Judgment reversed and cause remanded.