1 Mo. 504 | Mo. | 1825
delivered the opinion of the Court.
This was an action of assumpsit upon a promissory note, given to the State for loan office certificates, borrowed by the defendants at the loan office in Chariton. A summons was issued out of the Howard Circuit Court, which was personally served by the Sheriff of Howard county upon Harriman ;: Green and Delany were returned not found. An alias summons issued to the county of Chariton against Green and Delany, which was returned personally served, by "Alexander Trent, Deputy Sheriff;” Harriman appeared and pleaded, and the issues were found against him ; Green and Delany were called, but came not. Their default was entered, the damages assessed against them, and a joint judgment entered against all three of the defendants. It is contended thatthis judgment is erroneous, inasmuch as there is no legal evidence of any service of the summons upon Green and Delany; the return by. the deputy Sheriff, in his own name, being no legal evidence. Although the deputy may do any act which the principal Sheriff can, yet the law is well settled, that every act must be done in the name of the Sheriff. This return is, therefore, bad, and affords no evidence of any regular service of the summons upon Green and Delany.
We have already decided that the return of the process constitutes a part of the record upon which error will lay. The judgment as against Green and Delany, is, therefore, clearly erroneous. As against Harriman, the judgment would have been good, had it been several;. but being entire and joint, against all the defendants, if it is had as to one, it is had as to all: vide Bac. Abr., tit. Error, letter M. p. 500.
The judgment of the Circuit Court must, therefore, be reversed, with costs, and the cause remanded to he further proceeded in according to law.
