54 Miss. 24 | Miss. | 1876
delivered the opinion of the court.
The motion made in the court below to vacate the return
There was no personal service in the case at bar, the defendant having died before it could be obtained; and we should therefore reverse the judgment and dismiss the case, but for the fact that the attachment writ, besides being levied by a plaintiff in person on a tract of land, was on the same day properly served by the sheriff of the county on two persons as garnishees, both of whom answered, acknowledging indebtedness, and against whom judgment was rendered, together Avith a judgment of condemnation of the land attached. A judgment at law, being an entire thing, is not divisible, and therefore the erroneous condemnation of the land vitiates the judgment against the garnishees, and will necessitate a reversal of the case. Inasmuch, however, as the court below obtained jurisdiction by the lawful service upon the garnishees, and the case must therefore be retained and remanded for new trial, it becomes necessary to notice some of the points raised on the former trial.
We must first, however, dispose of the suggestion made by the appellant, that the suit must be abated, because the defendant, the appellant’s intestate, died before personal service of process upon him. The point arises under § 1486 of the Code of 1871, Avhich provides that, “ If the defendant shall die after service of the writ of attachment, the action shall not thereby
The court below did not err in excluding the set-off offered by the defendant. It consisted of a- copy only of an account, the original of which had been found among the defendant’s papers after his death. It was in the handwriting of J. J. Baker, the senior member of the plaintiff firm, and showed an indebtedness by the firm to the defendant of f1,775. Had this original account in the handwriting of Baker been produced, it would have been competent evidence; but it was improper to introduce a copy of it.
The plaintiffs having attempted to establish the correctness of the accounts sued on by the testimony of their clerks, who testified as to the general correctness of their mercantile books, and that the accounts were faithfully transcribed therefrom, the defendant moved to exclude their whole testimony, upon the ground that the books should have been produced, or their loss established. Had the motion been limited to such portions of the testimony only as related to the books, it should have been sustained; but it proposed to exclude the whole testimony of the clerks in relation to the accounts, and as to portions of these the witnesses testified of their personal knowledge independently of the books.
For the errors indicated, the judgment is reversed and cause remanded. Should a new trial result in verdict and judgment for the plaintiffs, there will be judgment of condemnation only of the amount due by the garnishees, the attachment as to the land being void.